531_2009170_6107

Spring 2008

Analysis

Articles

Enacting a British Constitution: Some ProblemsVernon Bogdanor and Stefan Vogenauer

Public-Private Intersection: Comparing Fiduciary ConflictDoctrine and BiasMatthew Conaglen

The Courts and Politics after the Human Rights Act: A CommentTom Hickman

The Pervasiveness of PolycentricityJeff A. King

Constitutionalism and Legislation in Special Educational NeedsLaw: An Anglo-Irish PerspectiveConor O’Mahony

Current Survey

International Survey

Government and Politics Journals

Book Reviews

Analysis

The ombudsman and ‘‘paths to justice’’: a just alternative or justan alternative?Ann Abraham

Against a written constitutionN.W. Barber

The consistency of Dicey: a reply to McLean and MacmillanVernon Bogdanor

Gordon Brown’s new constitutional settlementAndrew Le Sueur

The Privy Council overrules itself—again!Derek O’Brien

Book Reviews

Gavin Drewry, Louis Blom-Cooper and Charles Blake: The Courtof Appeal.

Colin Turpin and Adam Tomkins: British Government and theConstitution: Text and Materials.

Joseph M. Jacob: Civil Justice in the Age of Human Rights.

Christopher Hood and David Heald: Transparency—The Key to BetterGovernance? Proceedings of the British Academy, Volume 135.

Andrew T. Kenyon and Megan Richardson: New Dimensions in PrivacyLaw—International and Comparative Perspectives.

Public LawPublic L

awSprin

g 20081–202

*209804*

PL Spring-08:v 10/1/08 13:24 Page 1

Sir Louis Blom-Cooper, Q.C. Of the Middle Temple.

Paul Craig, Q.C. Professor of Law in the University of Oxford andFellow of St John's College.

Terence Daintith Of Lincoln’s Inn, Emeritus Professor of Law,University of London

Gavin Drewry Professor of Public Administration, Royal Holloway,University of London.

Evelyn Ellis Of the Middle Temple, Professor of Public Law,The University of Birmingham.

Roger Errera Conseiller d’Etat (hon.), Former Member of theConseil supérieur de la magistrature.

Lord Lester of Herne Hill, Q.C. Of Lincoln's Inn.

Clive Lewis, Q.C.Of the Middle Temple.

Gillian S. Morris Of the Inner Temple, Professor of Law,Brunel University.

Colin Munro Professor of Constitutional Law,University of Edinburgh.

Danny Nicol Professor of Public Law,University of Westminster

David Pannick, Q.C. Of Gray's Inn and Fellow of All Souls College,Oxford.

Adam Tomkins John Millar Professor of Public Law,University of Glasgow.

Diana Woodhouse Professor of Law, Oxford Brookes University

Editorial CommitteeEditor Andrew Le Sueur

Professor of Public Law, Queen Mary, University of London.

Book Review Nick W. Barber Editor Fellow and Tutor in Law, Trinity College, Oxford.

Current Survey Ian Yeats Editor Senior Lecturer in Law, Queen Mary, University of London.

International Richard CornesSurvey Editor Senior Lecturer in Law, University of Essex

Editorial Kyela LeakeyAssistant Of the Middle Temple

Since its creation in 1956, Public Law has been and continues to be theonly British journal devoted to publishing scholarly articles, reviewsand surveys that analyse and comment upon leading issues ofconstitutional and administrative law in the United Kingdom andabroad (especially in Europe, U.S.A. and the Commonwealth).

ISSN 0033-3565

© Sweet & Maxwell Ltd and Contributors 2008

Public LawNotes for Contributors

• The Editor of PUBLIC LAW welcomes enquiries from intendingcontributors about items that may be suitable for publication, whether asArticles (generally no more than 9,500 words), or as Analysis Pieces(normally up to 4,000 words in length).

• Submission of Articles or other contributions will be held to imply thatthey contain original unpublished work and are not being submitted forpublication elsewhere. No liability is accepted for loss or damage to materialsubmitted.

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Editor Andrew Le SueurDepartment of Law Queen Mary, University of London 339 Mile End RoadLondon, E1 4NS Tel.: 020 7882 5146 Fax.: 020 8981 8733Email: [email protected]

Book Review Editor Nick Barber Trinity CollegeOxford OX1 3BH Tel.: 01865 279957 Fax.: 01865 279911

PL Spring-08:v 10/1/08 13:24 Page 2

Public LawSpring 2008

AnalysisThe ombudsman and ‘‘paths to justice’’: a just alternative or just an

alternative?Ann Abraham 1

Against a written constitutionN.W. Barber 11

The consistency of Dicey: a reply to McLean and MacmillanVernon Bogdanor 19

Gordon Brown’s new constitutional settlementAndrew Le Sueur 21

The Privy Council overrules itself—again!Derek O’Brien 28

ArticlesEnacting a British Constitution: Some Problems

Vernon Bogdanor and Stefan Vogenauer 38Public-Private Intersection: Comparing Fiduciary Conflict Doctrine

and BiasMatthew Conaglen 58

The Courts and Politics after the Human Rights Act: A CommentTom Hickman 84

The Pervasiveness of PolycentricityJeff A. King 101

Constitutionalism and Legislation in Special Educational NeedsLaw: An Anglo-Irish PerspectiveConor O’Mahony 125

Current Survey 152

International Survey 173

Government and Politics Journals 189

Book Reviews 191

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Analysis 1

Analysis

The ombudsman and ‘‘paths to justice’’: a just alternativeor just an alternative?

Administrative law; Human rights; Ombudsmen; Public services

At a recent ombudsman conference at Warwick University one of the guestspeakers, the Ombudsman for Austria, provoked a good deal of amusementby describing the success of a reality TV show called, ‘‘The Ombudsman:top stories, hot topics’’. Hard to believe, maybe, but this hugely popularprogramme draws its content from the human-interest material that passesacross the Austrian Ombudsman’s desk every day of the week and regularlyattracts an audience of up to a third of the population.1

That the Austrian Ombudsman struggled at first to understand his audience’sreaction—at first disbelief, followed by some mirth—reflects in part, I suspect,the difference in outlook between our respective jurisdictions: in Austria (andmuch of Europe, for that matter), the ombudsman ‘‘idea’’ is so central to localand national administrative law that it is the obvious place to turn for a socialsnapshot or a good story; in the English-speaking and common law world, theidea of attracting a similarly appreciative audience is at present, well, probablylaughable.

I am put in mind too of a recent exchange, at a conference of Europeanombudsmen, with the Norwegian Ombudsman in which he gently chidedthe United Kingdom for allowing its judges to have the last word on whetheran ombudsman has come to the right conclusion. This he regards as ajurisprudential outrage. When asked whether in that case he considered theombudsman to be above the law, he had no hesitation in replying, ‘‘What doyou mean? The ombudsman is the law’’.

I do not intend going quite as far as that today, but I do want to stake aclaim for the Parliamentary and Health Service Ombudsman (PHSO)—andfor public sector ombudsmen more generally—as an integral part of theadministrative justice ‘‘scene’’ in this country, in fact as a coherent ‘‘system ofjustice’’ in its own right.2 I want as well to identify some of the distinctive

1 For details of the Austrian Ombudsman’s work, see http://www.volksanw.gv.at [accessed November15, 2007].

2 For official recognition of the need for a more holistic approach to the administrative justice system,see Department for Constitutional Affairs, Transforming Public Services: Complaints, Redress and Tribunals,

[2008] P.L. Spring Sweet & Maxwell and Contributors

2 Public Law

features of that ‘‘system’’, of the ombudsman approach, the things that makeit significantly different from the conventional common law way of goingabout these things. This is justice, but not necessarily as we know it. Indoing that, I want to suggest, however, that the ombudsman system, althoughdifferent, is complementary to the courts and tribunals on the one hand and tonegotiated forms of alternative dispute resolution on the other; different from,yet receptive to elements of, both.

And I want as well to pose some questions that flow from these observations:if the ombudsman system is complementary to the rest of the administrativejustice system, to what extent do the other parts (the courts and tribunals, forexample) repay the compliment by recognising it as such; and if this really isa system of justice, where in the Ministry of Justice is the overview of thatpart of the justice system and the ownership of developments in ombudsmanpolicy to be found?

The ombudsman as a ‘‘system of justice’’

But let’s start with a brief survey of ombudsman practice. Just what sort ofthings do ombudsmen get up to? What sort of complaints do they investigateand what sort of remedies can they offer?

Between them, public sector ombudsmen handle complaints about allthe main public services delivered in England, Northern Ireland, Scotlandand Wales. In 2006/07 the PHSO dealt with over 14,000 inquiries; andcompleted over 2,500 investigations. Over 1,100 of the cases reportedon arose in the health sector (the Healthcare Commission, NHS HospitalTrusts, Primary Care Trusts and primary care providers accounting for themajority). The balance related to a wide range of government departmentsand agencies, with the biggest repeat customers being HM Revenue andCustoms (especially in respect of tax credits), Jobcentre Plus, the ChildSupport Agency, the Pension Service, and the Immigration and NationalityDirectorate (IND), as it then was. In 62 per cent of cases investigated, theOmbudsman upheld the complaint in full or in part. In every one of thecases reported on in 2006/07, the parties complied with the Ombudsman’srecommendations.

These quantitative figures disclose substantial reach and scope. The remediesachieved as a result of PHSO investigation are equally diverse. In some cases,the remedy is pecuniary: a payment of £335 by the IND for a postal feeunnecessarily incurred; compensation from Jobcentre Plus for £18,000 arrearsof income support, late payment of benefit, lost entitlement to free schoolmeals and help with school uniforms; remittance by the Revenue of anoverpayment of £7,500; reimbursement by the Disability and Carers Serviceof £9,500 to cover lost disability allowance plus interest over a four yearperiod.

2004, Cm.6243. See more generally, M. Seneviratne, Ombudsmen: Public Services and AdministrativeJustice (Butterworths, 2002).


Analysis 3

In others, it is non-pecuniary: a trust-wide audit of clinical records andthe institution of training in the handling of MRSA positive patients; thereview of a decision by a Primary Care Trust to refuse funding of continuingcare; improvement of supervision, ward staffing levels and skill mix in themanagement of patients with dementia and poor communication; provision ofweekend senior medical cover and better transfer procedures within a PrimaryCare Trust.

Levels of satisfaction with the PHSO’s work are high (especially when it isremembered that many complainants walk away empty handed): in our mostrecent customer satisfaction survey 63 per cent of complainants were satisfiedor very satisfied with the way in which their complaint was handled; and51 per cent spoke highly and positively of the Ombudsman and the serviceprovided, with a large majority considering the Ombudsman to be responsive,accessible, sympathetic and fair.

This snapshot of PHSO work indicates good levels of business, diversityof remedy and client satisfaction. Compliance rates with the PHSO’srecommendations are very high, and almost certainly far higher than compliancewith judgments imposed by the civil courts. Interestingly, compliance with ourrecommendations has gone up this year—from 99 per cent in 2005/06 to 100per cent in 2006/07. There is no indication that the inability to make bindingrecommendations impairs the PHSO’s ability to deliver substantive justice.

Moreover, it is apparent from the examples cited that complainants includein large measure those most vulnerable and experiencing ‘‘justiciable events’’that have the most direct bearing on their human rights and general well-being.As such, the PHSO (and the collective of public sector ombudsmen) deservesserious consideration as a significant ‘‘path to justice’’ for very many aggrievedand disadvantaged citizens.3

But to what sort of justice might the ombudsman route be a ‘‘path’’? What,in other words, are the distinguishing features of the ombudsman approach?As we all know, after Lord Woolf’s reforms, there is more than one way toskin the judicial cat, or to mix my metaphors, in a world of judicial ‘‘horsesfor courses’’ there is certainly more than one way (if I can put it this way) ofbeing taken for a ride.

The ombudsman way is not that of the courts and tribunals, nor is it for themost part the way of mediation or other negotiated ADR. An ombudsman is analternative, but it is an alternative forum for making decisions not an alternativeto decision-making altogether. The distinction between the ombudsman andmediation is underlined by a recent change in the law. The RegulatoryReform (Collaboration etc. between Ombudsmen) Order 20074 is, as itstitle suggests, primarily concerned with increasing the scope for collaborationbetween the PHSO and the Local Government Ombudsman, for example, bysharing information, conducting joint investigations or issuing joint reports.In addition, and quite regardless of any joint working arrangements, the

3 The context is set by H. Genn, Paths to Justice: What People Do and Think about Going to Law (HartPublishing, 1999).

4 SI 2007/1889.


4 Public Law

Order enables the PHSO, and indeed the Local Government Ombudsman,to ‘‘appoint and pay a mediator or other appropriate person’’ to assist in theconduct of an investigation. There may well be cases where ‘‘mediation’’ isespecially appropriate in enabling the parties to explore their differences with atrained facilitator, achieve insight and empowerment, and devise for themselvesa way forward. Other domestic ombudsman schemes, such as the HousingOmbudsman Service, have made productive use of such arrangements for sometime.

The availability of mediation might also be of assistance to those engagedin judicial review proceedings and referral by the court to mediation in suchcircumstances would no doubt be appropriate. It should not be thought,however, that the ombudsman is itself an agent of mediation. Mediation isnot a decision-making process. Crucially, it lacks the adjudicatory functionthat is exercised by an ombudsman. In that regard, the ombudsman sharesan important judicial characteristic with the courts and tribunals. Whatdistinguishes the ombudsman from the courts and tribunals is not, then,the lack of an adjudicatory function but rather the ability to adjudicate ina different way. As Bean J. noted recently in his judgment in the judicialreview of the government’s refusal to accept my finding of maladministrationin respect of official information provided about occupational pensionschemes, the ombudsman has ‘‘very wide discretion’’; ‘‘a public adversarialhearing is not the only fair way of finding facts’’; and it is not the wayParliament requires either of the Parliamentary or the Local GovernmentOmbudsmen.5

In other words, although ombudsman schemes may have plenty in commonwith the courts and tribunals, they are far from perfect clones of them. Ofmore interest, in fact, are the differences. Where the law, at least in thisjurisdiction, has traditionally been characterised by formality, the observanceof rigorous rules of evidence, adversarial process and the binding authorityof precedent, ombudsman practice by contrast has always prized its relativeinformality, its common-sense approach to evidence, its inquisitorial processand its capacity to do justice in the individual case, unfettered by the burdenof binding precedent. As one commentator put it, ‘‘If the law is cold and rigidin its adherence to universal principle, an ombudsman is warm and supple inhis or her response to the particular’’.6

It is of course precisely this sense of ‘‘otherness’’ that invests ombudsmenschemes with their attraction for potential litigants. Like other alternativesto the courts and tribunals, whether mediation, conciliation or arbitration,ombudsmen rightly take pride in the relative speed, simplicity and lowcost of the ‘‘individuated’’ and essentially inquisitorial form of justice thatthey administer. They have relative freedom in deciding for themselves thebest way to get to the real heart of a particular dispute, picking out thekey issues and if necessary redressing any imbalance of power between

5 R. (on the application of Bradley) v Secretary of State for Pensions [2007] EWHC 242 (Comm); [2007]Pens. L.R. 87.

6 N. O’Brien, ‘‘Ombudsmen and the courts: time for dialogue’’, The Ombudsman, December 2002.


Analysis 5

the parties. For those for whom the law’s cost, delay and inflexibilityare active deterrents, the softer, gentler ombudsman way is naturallyenticing. It is, perhaps, a bit like (but only a bit!) the difference betweencomplementary and conventional medicine, between acupuncture and thesurgical knife.

And there is a bonus too. In order to remedy any mischief that is revealedby the investigation, an ombudsman will generally have at his or her disposala range of devices that will not merely provide for justice between theindividual parties to the dispute but, crucially, that will also facilitate systemicchange. In other words, an ombudsman investigation has the potential totranscend the inherent individualism of conventional litigation. This qualityis, for example, apparent in my own office’s ability, provided by statute, toproduce ‘‘special reports’’ where necessary to root out systemic problems andexercise a somewhat more systematic check on progress.7

It is tempting to suggest then that there is a considerable degree of rivalrybetween ombudsman practice and the law, or at best that the two are related inmuch the same way as chalk and cheese, by a superficial similarity that dissolveson closer inspection into irremediable and disappointing difference. Yet theaspirations of the courts and of ombudsmen are now, arguably, less than everbefore, polar opposites. Since Lord Woolf’s reforms of the civil justice systemand the more recent reorganisation of the tribunal system, the emphasis in bothcourts and tribunals is upon making each respective system work for those whouse it, and upon finding procedures that offer genuine access, authoritativedecisions and meaningful remedies. Underpinning these reforms is the ‘‘horsesfor courses’’ philosophy I mentioned earlier, the recognition that the judicialsledgehammer is hardly the appropriate tool for cracking every contested nutin town.

Seen in that reformist light, the potential rivalry of ombudsmen and thecourts evaporates into potential partnership, with the ombudsman system amature and legitimate stable companion of the other two thoroughbreds.Indeed in 2002 the Court of Appeal lent credence to this consensualaccount, although, as explained above, it would be a mistake to look tothe ombudsman for ‘‘mediation’’ in the first instance, notwithstanding the newOrder which permits the Ombudsman to deploy external mediation serviceswhere appropriate.8

On such a view, there is clearly a place for early referral of disputesby the parties, or indeed by the courts and tribunals themselves, to anombudsman. As things stand, the Ombudsman is barred from investigating‘‘any action in respect of which the person aggrieved has or had a remedyby way of proceedings in any court of law’’, subject to the proviso ‘‘that theCommissioner [Ombudsman] may conduct an investigation notwithstandingthat the person aggrieved has or had such a right or remedy if satisfied thatin the particular circumstances it is unreasonable to expect him to resort or

7 For discussion of this power, see R. Kirkham, ‘‘Auditing by stealth? Special Reports and theOmbudsman’’ [2005] P.L. 740.

8 Cowl v Plymouth City Council [2001] EWCA Civ 1935; [2002] 1 W.L.R. 803.


6 Public Law

have resorted to it’’.9 In practice, that proviso creates a necessary measureof discretion, at least enabling the ombudsman to accept for investigationany case where the relevant statutory appeal process or court proceedingssimply cannot address (or could not have addressed) the injustice in question,on the basis that there is no alternative legal remedy and so no scope forclash with the court’s jurisdiction. It was in the spirit of further clarificationand of removing superficial impediments to the exercise of this discretionthat Lord Newton of Braintree, the Chairman of the Council on tribunals,moved an amendment to the Tribunals, Courts and Enforcement Bill deletingthe presumption created by the existing legislation that the ombudsmanwill only exceptionally investigate cases that might otherwise have goneto court. As Lord Newton reminded the House of Lords, Lord Woolfrecommended in 1996 that the relationship between the courts and ombudsmenshould be broadened, enabling issues to be referred by ombudsmen tothe courts and by courts to the ombudsmen with the consent of thoseinvolved.

Legislative clarification would certainly have been welcome and no doubthave reinforced co-operation between the courts and ombudsmen. But letme give an example of how the courts and ombudsmen can already bringtheir distinctive contributions to bear on the same issues in an even broadercontext. In my role as Health Service Ombudsman for England I have donea lot of work on continuing care (i.e. funding by the NHS of long-term carefor elderly and disabled people). This illustrates very well the respective rolesof ombudsmen and the courts—and how, if those roles are clearly understood,they can be made to work in the best interests of complainants.10

In July 1999 the Court of Appeal gave judgment in the landmark case ofCoughlan.11 The Court considered the issue of whether nursing care for achronically ill patient might lawfully be provided by a local authority as asocial service (and thus be means tested) or whether it was required by lawto be provided free of charge by the NHS. The judgment was that whetherit was unlawful to transfer responsibility for the patient’s general nursing careto the local authority depended, generally, on whether the nursing serviceswere:

• merely incidental or ancillary to the provision of accommodationwhich a local authority is under a duty to provide;• of a nature which an authority whose primary responsibility is toprovide social services could in fact be expected to provide.

That case determined the law—and determined the remedy appropriate in thatcase. But the Ombudsman continued to receive complaints about how the lawwas being applied by a number of health authorities.

In February 2003 I reported to Parliament on the outcome of theinvestigations of complaints about decisions of four different NHS Trusts in

9 Parliamentary Commissioner Act 1967 s.5(2).10 Hansard, HL Vol.689, col.303 (January 31, 2007).11 R. v North and East Devon Health Authority Ex p. Coughlan [2001] Q.B. 213.


Analysis 7

relation to patients’ eligibility for continuing care funding.12 I concluded that,since 1996—both before and after the Coughlan judgment—the Departmentof Health had not provided the necessary guidance to NHS bodies to providethe secure foundation needed to enable a fair and transparent system ofeligibility across the country; and that what guidance there was had beenmisinterpreted and misapplied by some health authorities in developing theirown eligibility criteria, causing injustice and hardship to people in the cases Iinvestigated. As a result of that report, health authorities carried out over 12,000retrospective reviews. And the Department of Health has estimated that around£180 million has been paid in retrospective payments to people—and theirfamilies—who had previously been denied funding. So the courts determinedthe law—and delivered the remedy in the individual case; the Ombudsmanfollowed through—and delivered the remedy to others who had sufferedinjustice as a result of NHS maladministration.

The future of administrative justice

I have argued that ombudsmen deserve to be seen as a system of justice intheir own right, albeit one that is different from, but complementary to, thecourts and tribunals. Where then does that ombudsman system sit in relationto the rest of the administrative justice system? Let me answer that question bylooking briefly at three distinct but related issues: standard-setting in the publicsector; human rights and the reform of public services; and the vexed questionof public law remedies.

First of all, then, standard-setting. Ombudsmen are not regulators andshould not aspire to be so. They should though be seen as the potentialsetters and promoters of principles of good practice rather than the mereenforcer of established rules, an active agency in shaping the future behaviourof organisations rather than the passive adjudicator of individual disputes.

A case in point is my own office’s recent publication of its Principles ofGood Administration, which are an attempt to be open and clear with bothcomplainants and public bodies about the sorts of behaviour we expectwhen public bodies deliver public services, and the tests my office applies indeciding whether maladministration and service failure have occurred.13 Byapproaching this issue positively, we have in a sense turned the traditionalombudsman pre-occupation with maladministration on its head: instead oflooking retrospectively for instances of bad administration and performance,we are looking prospectively and supportively for good things, for preventionand not just remedial cure.

Secondly, there is the issue of human rights and the reform of public services.Although the passing of the Human Rights Act is a triumph for human rightsprinciples, it also makes them easy prey to the ‘‘crisis of legalism’’ and all that

12 Health Service Ombudsman, Second Report, NHS Funding for Long Term Care, HC Paper No.399(Session 2002/03).

13 PHSO, Principles of Good Administration (2007). See also, British and Irish Ombudsman Association,Guide to principles of good complaint handling (2007).


8 Public Law

goes with it (‘‘red tape’’, ‘‘compensation culture’’, ‘‘political correctness gonemad’’, ‘‘terrorist’s charter’’, etc.).14 Where can we look for the remedy?

The Department for Constitutional Affairs, as it then was, last year publisheda review of the Human Rights Act that highlighted the continuing challengeof embedding human rights in public consciousness and in public sectorpractice.15 It has since followed up that review with new practical guidancefor public officials.16

But in a complementary way, the judgment of Lord Woolf and his fellowCourt of Appeal judges a couple of years ago in the case of Anufrijevahighlighted the possibilities for extra-legal adjudication on human rightsissues by ombudsmen, and in doing so demonstrated how disproportionatelyexpensive the pursuit of maladministration complaints in the courts can be17;and academic commentators have also noted the potential attraction of ADR,including ombudsmen, for the resolution of human rights disputes.18

After all, in many jurisdictions oversight of equality and human rightslegislation already rests in the first instance in the hands of an ombudsman, andon a visit to the United Kingdom in 2005 the European Ombudsmanhighlighted the need for greater co-operation between ombudsmen insafeguarding the rights of citizens and taking a ‘‘pro-active role in promotingthe rule of law and respect for human rights’’.

Even more recently, in Athens in April 2007, the Council of Europe invitedits Commissioner for Human Rights, Thomas Hammerberg, to seek greaterco-operation between his office, national ombudsman institutions and nationalhuman rights institutions, partly as a response to the backlog of 90,000 caseswhich currently chokes the European Court of Human Rights in Strasbourg,but partly too in recognition of the need to ‘‘repatriate’’ human rights atnational and grass-roots level, to take human rights out of the court room andinto the administrative bloodstream and popular consciousness.19

This is a challenge that public sector ombudsmen already meet, albeitnot always in explicit ‘‘human rights’’ terms. It would, though, be virtuallyimpossible for the Local Government Ombudsman to investigate disputesabout social housing provision, social services, education admissions andexclusions without addressing issues of human dignity and using a measureof proportionality for adjudicating between competing interests. The Prisons

14 On the ‘‘crisis of legalism’’ facing human rights, see C. Gearty, Can human rights survive? TheHamlyn Lectures 2005 (Cambridge University Press, 2006), Ch.3.

15 Department for Constitutional Affairs, Review of the Implementation of the Human Rights Act, July2006. For discussion of the Review, see Joint Committee on Human Rights, Thirty-Second Report,The Human Rights Act: the DCA and Home Office Reviews, HL Paper No.278/HC Paper No.716(November 14, 2006).

16 Department for Constitutional Affairs, Human rights: human lives—A Handbook for Public Authorities(2006).

17 Anufrijeva v Southwark LBC [2003] EWCA Civ 1406; [2004] Q.B. 1124.18 See, e.g. L. Clements and J. Read, Disabled people and human rights: a review of the implications of the

1998 Human Rights Act for disabled children and adults in the UK (Policy Press, 2003), p.92.19 10thRound Table of European Ombudsmen and the Council of Europe Commissioner for Human

Rights, Athens, April 12–13, 2007. For background to these discussions, see the Commissioner’s websiteat http://www.coe.int/t/commissioner [accessed November 15, 2007].


Analysis 9

and Probation Ombudsman, whose remit has been extended to cover deathsin custody, is regularly confronting situations where the daily grievances ofprisoners and their families touch upon matters that go to the heart of what eventhe most marginal can reasonably regard as the basic dignity afforded to theirhumanity. In Northern Ireland the Police Service Ombudsman has establishedherself as a significant force in the political culture, taking on investigationsthat go to the heart of human decency, respect and tolerance. And myown role of Parliamentary and Health Service Ombudsman inevitably entailsexploring aspects of public service delivery that have direct repercussionsfor the dignity of individual citizens and their relationship with the State.Human rights and ombudsmen are far from being strangers and mightyet play a larger role in delivering a human rights culture in the publicsector.

And thirdly, there is the matter of public law remedies, currently underconsideration by the Law Commission. My own office is also consulting ona set of principles to govern the provision of remedy by the ombudsman.20

Within my own practice there already exists the notion of ‘‘corrective justice’’,of repairing damage and if necessary providing compensation not just forfinancial loss but for ‘‘softer’’ disadvantage, such as injury to feelings. Withinthe administrative justice system more widely, that underlying principle hasbeen slow to gain universal recognition and it may indeed be true that inpublic law disputes its application is more complicated than in a privatelaw dispute between individuals. Nevertheless, the current differences inapproach to what might in essence be very similar causes of dispute cryout for some form of rationalisation, in recognition of the need to ensurethat disputes find their way to the forum that is most likely to deliver theright level of adjudication, the right remedy and the best prospects of futureprevention.

And that in short is an argument for integrating the ombudsman systemof justice more consciously and deliberately than at present into the wideradministrative justice system. There is little sign that any effective mechanismscurrently exist for ensuring that courts and tribunals refer suitable cases toombudsmen, although ombudsmen very often have it in their remit todirect complainants to the courts and tribunals if competence lies in thatdirection.

You will search in vain too for a branch of government that sees it as its job toundertake the task of rationalisation. Even within the new Ministry of Justice,where such a remit might be thought to reside, I see little appetite for the taskof imposing some sort of order upon the growth of the ombudsman sector.That ombudsman schemes will continue to multiply seems almost inevitable.Without strategic direction, and a coherent framework for the developmentof new ombudsman schemes, that growth will surely undermine the sort ofpotential outlined in this paper for ombudsmen to play an active part in thedelivery of appropriate dispute resolution and indeed of justice. Even worse,

20 PHSO Draft Principles for Remedy, Consultation March 2007, see http://www.ombudsman.org.uk[accessed November 15, 2007].


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it will very likely lead to the need for fundamental surgery of the sort dealtrecently to the tribunal world.21 A ‘‘Leggat review of ombudsmen’’ cannot bethat far away.

It is not too late to avoid that prospect. But the first step will be forgovernment, and others, to recognise the part that ombudsmen can, andalready do, play as a system of justice in their own right. That does notrequire a prime time TV slot, but it does require greater understanding of theombudsman landscape and a recognition that ombudsmen in this country haveundoubtedly come of age.

Ann Abraham*

21 See Tribunals, Courts and Enforcement Act 2007.* Parliamentary and Health Service Ombudsman. This is a revised version of a paper delivered at

W.G. Hart Workshop at the Institute of Advanced Legal Studies, London, June 27, 2007.


Analysis 11

Against a written constitution

Constitutional reform

No one enjoys radical change quite as much as constitutional lawyers.When Gordon Brown hinted that one of the projects of his premiershipmight include the production of a written constitution for the UnitedKingdom, he could be sure of a warm welcome from within the facultiesof law and politics. The project is attractive to academics for manyreasons: there is the fun of debating abstruse constitutional issues, thechance of bringing certainty to areas long characterised by vagueness, and,perhaps, the opportunity to take a privileged role in the constructionof the constitutional foundations of the state. But before we let ourenthusiasm sweep us forwards, it is worth stepping back and consideringthe dangers and difficulties such an enterprise would encounter. TheUnited Kingdom is in the unusual position of having an unwrittenconstitution that works passably well—sufficiently well, at least, to allowus to consider whether we want a new constitution. Most other states whichhave produced a written constitution, in contrast, have had little choice:when a territory gains independence or there is a radical break with theold constitutional order, the creation of a written constitution is almostunavoidable.

This paper attempts to flesh out some of the most important argumentsagainst introducing a written constitution for the United Kingdom. Theyseek to show that the adoption of such a document would be a hazardousaffair; that it risks forcing through unpopular or concealed changes to theconstitution, that it risks shifting political power from democratic institutionstowards the judiciary, and that it risks unnecessarily provoking a destabilisingconstitutional crisis. Having set out the objections to a written constitution,the weight of the argument then shifts to its advocates: given that a writtenconstitution is not necessary, they must show that its benefits outweigh itsdangers.

The uncertain mixture of codification and reform

One of the many interesting ambiguities that has emerged from the debate so faris the complicated interplay between codification and reform. Would the newconstitution simply be a formalised restatement of existing constitutional rules,or would the opportunity be taken to reform some parts of the constitution?

Much of the excitement surrounding the project has been generated bythe wide possibilities it affords for radical change and improvement of theconstitution. Lord Hailsham’s assertion, pressed back in the late 1970s, thata written constitution was needed to protect us against a stealthy communisttakeover now seems, perhaps, less compelling,1 but many other claims have

1 Lord Hailsham, The Dilemma of Democracy (London: Collins, 1978), pp.139–140.


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been made for the possible virtues of a written constitution. Perhaps weshould have fixed-term parliaments,2 give judges the power to strike downunconstitutional legislation,3 create an elected House of Lords,4 require theCommons to vote before Britain goes to war5; perhaps we should adopt all ofthese reforms, some of them, or a different set altogether. It is not the purposeof this paper to argue for or against any of these measures. There are manyareas in which the British constitution would benefit from change, but thequestion to be answered by advocates of a written constitution is why thesevarious changes should be treated as a package. Some constitutional reformsdo require wide systemic changes; they affect several areas of the constitutionat once. So, for example, the incorporation of the European Convention onHuman Rights necessitated changes to the role of the judiciary, to the practicesof Parliament, and, as well, altered the rights of the citizen. The HumanRights Act 1998 was, of necessity, presented as a package of inter-connectedconstitutional changes; the different parts of the Act were bound togetherand depended on each other for their effectiveness. Whilst Parliament, whenconsidering the Bill, could make superficial changes to it, it could not alterits fundamental elements without rejecting the whole thing. In contrast, thereis no obvious reason why a person who supported, say, an elected Houseof Lords should also think that judges should be empowered to overturnstatutes, nor why an advocate of fixed-term parliaments should believe theCommons should have the right to decide on military action. These variousmooted reforms are not connected, and, consequently, it is difficult to seewhy they should be combined into one document. If, as is probable, therewere ultimately a referendum on the new constitution, the public wouldbe presented with a collection of unrelated changes which they could eitheraccept as a package or reject in its entirety. It is possible that widely unpopularchanges might then be passed on the back of other reforms. There might,for instance, be a sizable majority strongly against fixed-term parliaments, butthey might reluctantly vote for the constitution because of their support foran elected House of Lords. Tying unconnected changes together runs the riskthat unpopular reforms may be foisted by the drafters on the public, changesthat would not have occurred had each separate element been separatelydebated.

If, on the other hand, the aim of a written constitution is simply to formalisethe existing constitution, the point of the enterprise is thrown into doubt.There is little to be gained from such a project. Indeed, the fundamentallyvague line between description and evaluation ensures that it would neverbe possible merely to describe the constitution. When constitutional lawyersdisagree, as they invariably do, about the content of the constitution, it is rarethat one of them has made a straight-forward mistake about a statute, case

2 Institute for Public Policy Research, A Written Constitution for the United Kingdom (London: MansellPublishing, 1991), p.73.

3 Lord Scarman, Why Britain Needs a Written Constitution (London: Charter 88, 1992), p.2.4 Institute for Public Policy Research, A Written Constitution for the United Kingdom, p.97.5 A. Grice, ‘‘Brown May Bring In a Written Constitution’’, The Independent, May 11,2007.


Analysis 13

or convention. Each will have an adequate grasp of the bare constitutionalmaterial which is the subject-matter of the dispute, but each will have adifferent understanding of the point of the rule under discussion—a differencewhich may be connected to a broader dispute about the proper aims and goodfunctioning of the constitution as a whole. Drafters who were mandated todescribe the constitution would, more or less knowingly, be compelled toevaluate it, and shape it in light of those evaluations. A written constitutionthat purported merely to restate the current position would inevitably containconstitutional reform by stealth; hidden change effected without proper publicdebate.

The shifting of power to the courts

Constitutional scholarship often splits into two opposing camps: pro-courtversus pro-parliament. The pro-court party want to see the constitution shapedand policed by the courts. Judges should prevent the state from infringingpeople’s rights, and should also, perhaps, uphold obligations between andwithin institutions: stopping Parliament legislating in matters given to thedevolved assemblies, for instance, or reinforcing the conventions of ministerialresponsibility. The pro-parliament party believes that political power can onlybe legitimately exercised through democratic institutions. Judges should, as faras possible, stick to applying the laws legislatures produce, and should strivenot to distort the political processes of the constitution. And then there isthe non-aligned group, amongst which I include myself, who see merit ineach approach, and believe that both the courts and legislatures must play asignificant part in the legal and political life of the constitution. In the debateabout the content of a written constitution considerable controversy will arisebetween these two camps: to what extent will judges be required to enforcethe content of the new constitution?

Supporters of increased judicial power often remind us of Lord Hailsham’sdescription of the United Kingdom as an ‘‘elected dictatorship’’.6 Not onlydoes Parliament possess, it is claimed, legally unchecked power, it is an illusionto think that the exercise of this power is blessed with the sanctity of democracy.True political power lies in the hands of the executive, who then dominate asupine Parliament. We need then a written constitution in order to rebalancethe constitution, empowering the judges to provide checks and balances againsta supposedly sovereign Parliament. The continued popularity of this descriptionof the constitution is surprising. Even if it was a fair accusation when advancedby Hailsham, it is far from an accurate picture of the contemporary constitution.In recent years Parliament, and the executive, have become ever moreconstrained by the courts and other constitutional institutions. The EuropeanCommunities Act 1972, the Human Rights Act 1998 and the devolutionlegislation all provide legal and political limits on Westminster. Many of theselegal limits are in the hands of the judiciary: through rules of interpretation,

6 Hailsham, The Dilemma of Democracy, Ch.20; Scarman, Why Britain Needs a Written Constitution,pp.6–7.


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hierarchy, and through the new remedy of the declaration of incompatibility,judges already exercise a significant level of control over Westminster. Inaddition to the courts, the devolved institutions and some of the institutionsof the European Union provide political constraints on Westminster: checkingits power, scrutinising its actions. None of this amounts to a blanket argumentagainst conferring further specific powers on judges, but the claim that weneed a written constitution to shift power away from Westminster to rebalancethe constitution is outdated: the rebalance has already occurred.

A further difficulty with appointing the judges as the policemen of theconstitution is that many of its parts appear inherently non-justiciable. Takeministerial responsibility, for instance. Ministerial responsibility is the corner-stone of the UK constitution, connecting the executive and the legislature.To a considerable extent it is already codified, and many of the conventionsthat regulate the relationship between ministers and Parliament can be foundin the Ministerial Code.7 It is hard, though, to see how a court could enforcethese conventions. How could a court decide when a minister had failed togive a satisfactory answer to a parliamentary question, or when her conductin office was so poor that she should resign or be demoted? How could ajudge separate those errors of judgment that were personal from those thatshow the minister is not fit for office? And, even if these conundrums could beresolved, what sort of remedy could the court offer, and to whom? The bulkof ministerial responsibility, like many other conventions, could not be turnedinto court-enforced law. It shapes and is shaped by a political relationshipbetween Parliament and the executive, a relationship that changes over time,depending on the relative strengths of each institution. Having an outsideinstitution, the courts, step in and try to enforce the convention would changeit in radical and unpredictable ways.

It might be objected that codification does not require juridification: wecould draw up a constitution that set out key constitutional conventions, butwhich did not permit judges to enforce them.8 A large portion, perhaps eventhe bulk, of the proposed constitution might then not be enforceable by thecourts. Such a document would raise two concerns. First, there is a risk thatthe courts would not accept such a limitation on their powers, or would seekways around it; the notion that rights should be paired with legal remediesis widespread. Secondly, if a constitution was drafted that succeeded in notadding to the power of the judiciary, and the bulk of its provisions were legallyunenforceable, it then becomes hard to see much utility in the enterprise. Itcould not even be argued that the supposed constitution would clarify keyconventions, as the conventions could evolve whilst the written ‘‘constitution’’remained constant. Perversely, the facade erected by the written constitutionmight make it harder to understand the content of the actual constitution, noteasier.

7 Ministerial Code: A Code of Ethics and Procedural Guidance For Ministers (London: Cabinet Office,2007).

8 O. Hood Phillips, Reform of the Constitution (London: Chatto & Windus, 1970), pp.147–149.


Analysis 15

The precipitation of constitutional crises

Normally, certainty and clarity are desirable features of a legal system. Criminallaw, for instance, ought to strive to be as clear and as plain as it can be.However, in certain circumstances a lack of clarity and the presence ofuncertainty can be a benefit.9 This is particularly true in parts of constitutionallaw and practice where uncertainty may mask, and allow us to avoid, a costlyand unnecessary political choice. There are several examples of such usefulvagueness in the British constitution. Perhaps one of the longest standingconcerns the jurisdiction to determine the scope of parliamentary privilege, anentitlement which has been asserted by both courts and the Commons. Bothhave been able to maintain their incompatible claims by studiously avoidingforcing a resolution of the question.10 The legal relationship between Britainand the European Union is similarly unclear, with the boundaries betweenParliament and the European institutions, and the British courts and theEuropean Court of Justice, left ambiguous. This relationship is one of the keyparts of our contemporary constitution, so how might a written constitutiondelineate it? Let us consider three possibilities, which embody very differentbalances of power between the various institutions.

First, the ‘‘Europhile model’’, a model which is broadly in line with theclaims of the European Court of Justice.11 Under this model, European lawtakes effect within the United Kingdom simply because the United Kingdomis a member of the European Union. European law would be supreme over alldomestic law—including the provisions of the new constitution. The EuropeanCourt of Justice would be entitled to determine the interpretation of Europeanlaw and, additionally, whether a particular question fell within the scope ofEuropean law. National courts would be bound to follow all of its rulings.

Second, the ‘‘German model’’, a model which is broadly in line withthe position adopted by the German Constitutional Court in the Maastrichtdecision.12 Under this model, European law would take effect within theUnited Kingdom’s legal order through the new constitution. It would takeprecedence over conflicting rules of ordinary domestic law, including statutes,but would not take precedence over the constitution itself. National courtswould be bound to follow the rulings of the European Court of Justice onlywhen those decisions were compatible with the constitution. Further, the courtmight also be entitled to determine whether the decisions of the EuropeanCourt of Justice fell within the jurisdiction allotted to it by the domesticconstitution.13

9 For extended discussion of these points, see N.W. Barber, ‘‘Legal Pluralism and the EuropeanUnion’’ (2006) 12 E.L.J. 306.

10 See Barber, ‘‘Legal Pluralism and the European Union’’; J. Chaftez, Democracy’s Privileged Few(Yale University Press, 2007).

11 K. Alter, Establishing the Supremacy of European Law (Oxford University Press, 2001), Ch.1; J.Weiler, ‘‘The Autonomy of the Community Legal Order’’, in J. Weiler, The Constitution of Europe(Cambridge University Press, 1999).

12 Brunner v The European Treaty [1994] C.M.L.R. 57.13 Institute for Public Policy Research, A Written Constitution for the United Kingdom, p.105.


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Thirdly, the ‘‘Eurosceptic model’’, a model favoured by many nationalpoliticians. Under this model, European law would take effect in the UnitedKingdom legal system by virtue of the European Communities Act 1972,which would be referred to, or incorporated within, the new constitution.European law would take precedence over parliamentary statutes where thestatute was ambiguous, or where it appeared that Parliament had not intendedto enact a law that conflicted with its European obligations. The primaryduty of national courts would be to give effect to Parliament’s intentions asembodied in statute, and the decisions of the European Court of Justice wouldonly bind national courts so far as they were compatible with this duty.

There are many other possible constructions of the relationship betweenBritain and Europe; indeed, for simplicity, each of our three models conflateda number of distinguishable issues. It is not possible, at present, to identifydefinitively which of the three most accurately captures Britain’s relationshipwith Europe. In the seminal case on the impact of European Law, Factortame(No.2),14 the House of Lords carefully avoided the opportunity to clarify therelationship. The majority of the judges did not address the constitutional issuesraised by the Merchant Shipping Act 1988. Lord Bridge was the only one tospeak to the issue. In a much-quoted passage he wrote that there was ‘‘nothingin any way novel in according supremacy to rules of Community law in thoseareas to which they apply’’.15 This statement could be reconciled with any ofthe three models set out earlier—even the first, Europhile, model, given thatthe supremacy of the European Court of Justice is a rule of Community law.

Of course, it is not even clear which institution—the British courts, theEuropean Court of Justice, Parliament or the authors of the treaties—couldauthoritatively determine the legal force of European law. Like theparliamentary privilege example mentioned earlier, much of the uncertaintyturns on this very question. There is a temptation to assume that there mustbe one institution that has the legal—or political—authority to determinethe issue, and a constitutionally correct answer that institution should give.16

But the answer to the question may turn on the nature of the crisis and thebroader political context in which the crisis arises. It may not just be hard todetermine how this fundamental constitutional question would be answered,there may not be an answer to be determined. Indeed, if we are lucky, thecrisis may never arise. Whilst grand disagreements over the fundamental linesof authority in the constitution look important, they may be of little practicalsignificance, provided the parties in the dispute agree on the rest of the lawswithin the system. The dispute over the jurisdiction to determine the scope ofparliamentary privilege has continued for well over a hundred years, and hascaused few difficulties in that time.

It might be argued that clarity in this area would be a good thing: people areentitled to know where constitutional power lies within the system. Perhaps

14 R. v Secretary of State for Transport Ex. p. Factortame (No.2) [1991] 1 A.C. 603.15 R. v Secretary of State for Transport Ex. p. Factortame (No.2) [1991] 1 A.C. 603 at 658.16 See the discussion of this temptation in P. Oliver, The Constitution of Independence: The Development

of Constitutional Theory in Australia, Canada and New Zealand (Oxford University Press, 2005), p.313.


Analysis 17

the process of producing a written constitution could provide an opportunityfor us to debate these issues, and resolve the allocation of power in the system.Further, it might be desirable to address these questions without the loomingpresence of a particular crisis to cloud our judgement. Against these thoughts,though, must be weighed the benefits that ambiguity can bring.

First, the sort of inconsistency described here may amount to a politicalcompromise; a tacit agreement to disagree.17 It allows supporters of ECJsupremacy and supporters of national supremacy both to claim victory;conversely, and perhaps even more importantly, it avoids either constituencyhaving to admit defeat. Whilst these parties cannot reach a compromisethrough the adoption of an agreed middle course, these ambiguities providea compromise framework within which their inconsistent claims can co-exist.Provided that the practical conflict within this model remains unrealised, andactual disputes are avoided, this can provide a stable, even a long-lasting, formof settlement. The settlement avoids unnecessary and potentially destructiveconflict, and allows the protagonists to work together on beneficial projectswhere agreement exists.

Secondly, these ambiguities could provide a form of what Alison Youngand I have described as ‘‘constitutional self-defence’’.18 A rule of constitutionalself-defence is one which empowers an institution to protect itself againstother constitutional bodies. For instance, legislatures are given judicial powersover their members to stop the encroachment of the courts, judges oftenrun the administrative side of the court process to protect the autonomy ofthe judicial branch from the executive. Sometimes these measures are moreaggressive, giving one institution a weapon it can use against another: forinstance, giving one legislature the power to strike down the acts of anotherlegislative body. Competing claims to supremacy arm national and Europeancourts with weapons that may help ensure mutual respect and restraint. If thepotential conflicts were realised, generating disagreement about the law whichapplied to individuals, all sides in the dispute would pay a price. Whilst itis unclear who will win, each side has an interest in avoiding the contest.The risks of actual conflict provide incentives for each party to strive towardsa harmonious interpretation of the law. It encourages the ECJ to interpretEuropean law in a manner that will be palatable to national courts,19 and, at thesame time, discourages national courts from blindly insisting on the primacy ofnational rules. In short, the competing supremacy claims may serve to createan atmosphere of co-operation between these courts, where each side has anincentive to respect the position and traditions of the other.

17 See generally, M. Maduro, ‘‘Europe and the Constitution: What If This Is As Good As It Gets?’’in J. Weiler and M. Wind (eds), European Constitutionalism Beyond The State (Cambridge UniversityPress, 2003).

18 N.W. Barber and A.L. Young, ‘‘Prospective Henry VIII Clauses and their Implications forSovereignty’’ [2003] P.L. 112.

19 As evidence of this see, perhaps, J. Coppel and A. O’Neill, ‘‘The European Court of Justice:Taking Rights Seriously?’’ (1992) 12 L.S. 227, though see also J. Weiler and N. Lockhart, ‘‘‘TakingRights Seriously’ Seriously: The European Court and its Fundamental Rights Jurisprudence’’ (1995)32 C.M.L.Rev. 51 and 579.


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Britain’s relationship with Europe is not the only area of the constitutionmarked by useful ambiguity. The constitutional relationships between theMonarch and Prime Minister, between the Prime Minister and his cabinet,and between the executive and the legislature all have significant areas ofuncertainty within them. Some of these uncertainties may be undesirableand should be resolved. But many serve to give each institution a plausibleconstitutional argument against the other body, an argument that may serve asa bargaining chip in a political struggle, buying respect and moderation.

Conclusion

Britain is one of a very few states which lack a written constitution, but thisbare accident of history does not provide an argument for us to adopt one.Britain’s constitution has, by and large, been a success. It has produced stablegovernment and—in terms of democracy, transparency, human rights andthe provision of social welfare—it compares reasonably favourably with manyother constitutions. Those calling for change in particular areas often make astrong case: the House of Lords is in desperate need of reform, for instance,and the English Question continues to dog the devolution settlement. Butthese specific issues do not show a need for wholesale reform of the entiresystem. Unless advocates of a written constitution can show a need for systemicchange, for a new constitutional settlement, it is hard to see what we will gainby undertaking the exercise. This paper has sought to show, however, whatwe will risk.

N.W. Barber*

* Trinity College, Oxford.


Analysis 19

The consistency of Dicey: a reply to McLean andMacmillan

Constitutional law; Ireland; Jurisprudence; Parliamentary sovereignty;Scotland

McLean and Macmillan in ‘‘Professor Dicey’s Contradictions’’1 believe,somewhat implausibly perhaps, that Dicey contradicted himself. That is becausethey fail to distinguish between four different doctrines. It is essential at theoutset to distinguish between them. They are:

1. The legal doctrine that Parliament is sovereign.2. The political doctrine that the unity of the United Kingdom is best

preserved by maintaining the unitary state, federalism being unsuitable.3. The political doctrine that there is no stable via media such as ‘‘Home

Rule’’ or ‘‘devolution’’ lying between the unitary state and federalism.4. The moral doctrine that there are certain things which a sovereign

Parliament ought not to do.

Dicey held all of these doctrines. The Law of the Constitution, however, is a workof constitutional law devoted to proving the truth of the first doctrine. Thepolemical works on Irish Home Rule are not works of law, but are devoted toproving the truth of the second, third and fourth doctrines.

It does not, of course, follow that, if Parliament is sovereign, it is morallyentitled to do what it likes. Dicey is in no way committed to approving anAct of Parliament which provides that all red-headed men should be executednext Monday. It was because Dicey believed that Gladstone was eliding thedistinction between the first and the fourth doctrines that he was so angry whenthe Prime Minister sought to invoke his authority in aid of his Governmentof Ireland Bill. In the case of the third Government of Ireland Bill of 1912,when Dicey declared that it lacked ‘‘constitutional authority’’,2 he did not ofcourse mean that it was unlawful. He meant that it lacked moral authority,partly because it did not enjoy popular approval, and partly because, in hisview, it would serve to exclude from the kingdom, against their wishes, theUnionists of Ireland, primarily though not exclusively concentrated in thenorthern counties.

Contrary to what McLean and Macmillan suggest, Dicey did not, in hislast book, Thoughts on the Union Between England and Scotland, written incollaboration with the Scottish historiographer royal, R.S. Rait, abandonthe legal doctrine that Parliament was sovereign. Of course, he faced theconundrum that the Scottish negotiators believed that they could, under theUnion, preserve certain fundamentals of Scottish law even in a sovereignParliament. Dicey’s answer to the conundrum was that Parliament was boundin honour, though not in law, to preserve these fundamentals.

1 [2007] P.L. 435.2 [2007] P.L. 435 at p.437.


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‘‘. . . the enactment of laws which are described as unchangeable,immutable, or the like, is not necessarily futile—A sovereignParliament—although it cannot be logically bound to abstain fromchanging any given law, may, by the fact that an Act when it waspassed had been declared to be unchangeable, receive a warning thatit cannot be changed without gave danger to the Constitution of thecountry.’’

While, from time to time, as McLean and Macmillan suggest, Scottish judgessuch as Lord President Cooper have remarked, obiter, that the Treaty of Unionwith Scotland was a form of fundamental law, the courts have never beenprepared to review primary legislation on the grounds that it conflicts withthe Treaty. In Murray v Rogers,3 in which defaulting poll tax payers arguedthat the legislation providing for the poll tax was contrary to the ScottishAct of Union, Lord Kirkwood stated that ‘‘there is so far as I am aware, nomachinery whereby the validity of an Act of Parliament can be brought underreview by the courts’’. In 1800, the Act of Union with Ireland had declaredthat the established Church of Ireland was unalterable; but, when Gladstonedisestablished that Church in 1869, the courts in Ex p. Canon Selwyn4 refusedto rule on its validity. The Union with Ireland Act of 1800 which was declaredto be ‘‘for ever’’ was repealed, except with regard to the six counties ofNorthern Ireland, in 1922.

None of this, of course, is to suggest that Dicey was right, either in law orin politics, only that he was consistent. In trying to prove that he was guilty ofa contradiction, McLean and Macmillan seem to me only to make confusionworse confounded.

Vernon Bogdanor*

3 1992 S.L.T. 221.4 (1872) 36 J.P. 54.* Brasenose College, Oxford.


Analysis 21

Gordon Brown’s new constitutional settlement

Bill of Rights; Constitutional reform; Voting

‘‘In a nutshell, it is about making the Executive much more accountable toParliament and Parliament more accountable to the people, and I really meanthat.’’ So explained Jack Straw MP (the new Lord Chancellor and Secretary ofState for Justice) appearing before the House of Lords Constitution Committee1

when asked about the overarching aims of the package of constitutional reformproposals announced by Gordon Brown in his first statement to the Houseof Commons as Prime Minister on July 3, 2007.2 The Governance of BritainGreen Paper published the same day is explicitly not ‘‘a final blueprint forour constitutional settlement’’ but ‘‘a first step in a national conversation’’.3 Attimes the Green Paper bears a passing resemblance to Will Self’s short story‘‘Scale’’, in which the protagonist, who lives next door to a model village,has lost his sense of the proportion of things. It ranges from matters suchas flying the Union Flag on public buildings, through the methods used topresent statements of government expenditure, to the genuinely constitutionalblockbuster issues of a British Bill of Rights and Duties and, for the first time,a government interest in adopting a codified constitution.

The Brown and Straw initiatives take place against a background of 10 yearsof constitutional reform during Tony Blair’s administration, including: inde-pendence for the Bank of England; devolution; the Human Rights Act 1998;a first phase of House of Lords reform; the Freedom of Information Act 2000;an attempt at elected regional government for England that failed to catchthe public imagination; a new system for judicial appointments; remodelling(rather than the originally envisaged abolition) of the office of Lord Chan-cellor; and a United Kingdom Supreme Court, due to start work in October2009. Why is more change needed? The answer, the Green Paper suggests, isthat further constitutional renewal—the vogue phrase—can help address twoproblems. The first is public disengagement with the political process and theirlack of trust and confidence in democratic institutions. The second is the needfor greater social cohesion—between the nations and regions of the UnitedKingdom, and between people of different races and religions. So, whereasmany of the Blair reforms focused on the architecture of the constitution,much of this latest phase of modernisation is directed at more intangible andslippery matters of perceptions and constitutional culture.

The scope of the renewal programme

Some of the proposed reforms (see the table below for an overview) may beseen as steps to address unfinished business from the Blair era. House of Lords

1 Uncorrected transcript of evidence, October 23, 2007, Q45.2 Hansard, HC col.815 (July 3, 2007).3 Cm.7170, p.5.


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reform will be completed by creating a ‘‘substantially or wholly elected secondchamber’’ (note the ‘‘or’’—the Green Paper sensibly hedges its bets on this),though not during the 2007/08 Session of Parliament. English regional gov-ernance is taken forward through the establishment of nine regional ministers(part-time roles for existing ministers) and nine House of Commons selectcommittees. The Blair administration accepted, in principle, the case for aCivil Service Act to replace the current regulations made under prerogativepowers . . . but dragged its feet; under Brown, legislation will be broughtforward during the 2007/08 Session. Modernisation of voting arrangements,including the prospect of lowering the age to 16 and weekend voting, followon from a series of pilot projects. Even the eye-catching proposal for a BritishBill of Rights and Duties falls under the head of unfinished business: during thepassage of the Human Rights Bill in 1998, incorporation of some Conventionrights into national law was conceived as a ‘‘first step in a journey’’.

Other aspects of the reforms mark the Government’s acceptance of long-running calls for change. Prerogative powers to ratify treaties are to be placed ona statutory footing, making clear Parliament’s scrutiny role. War-making pow-ers, the subject of recent inquiries by two parliamentary committees and severalPrivate Member’s Bills, will be brought under greater parliamentary con-trol—though it remains to be seen whether this will be achieved by legislationor a new constitutional convention formalised by resolutions of both Houses.

There are also more unexpected initiatives. Little more than a year afterthey have come into force, the Government is opening up debate aboutthe arrangements for judicial appointments in England and Wales. In a heftyconsultation paper published in October 2007, the Ministry of Justice seeksviews on removing the veto power of the Lord Chancellor (to say ‘‘think again’’or ‘‘no’’ to names put forward by the Judicial Appointments Commission)and various ways in which Parliament may be involved in the process, such aspost-appointment hearings.4 Repeal or amendment of provisions in the SeriousOrganised Crime and Police Act 2005 would make it easier for people toprotest outside Parliament.5 Proposals for parliamentary confirmation hearingsfor certain senior public posts may usher in a new approach to accountabilityas well as concern to avoid the excesses of the US confirmation hearingssystem.6 A new relationship between central and local government, set out ina concordat, is promised. But the most startling new initiative is the tentativesuggestion that in time there might be ‘‘a concordat between the executiveand Parliament or a written constitution’’.7

4 Ministry of Justice, The Governance of Britain: Judicial Appointments, Cm.7210.5 Home Office, The Governance of Britain: Managing Protest Around Parliament, Cm.7235.6 The recent Greater London Authority Act 2007 s.4, which creates a procedure for confirmation

hearings before committees of the Greater London Assembly for various appointments to be made bythe Mayor, may serve as something of a model.

7 Cm.7170, para.212.


Analysis 23

Gaps

There are some gaps in the Green Paper. Very little is said about theimpact of the United Kingdom’s membership of the European Union ongovernmental practices and future reform of our domestic constitution. Itis, arguably, quite difficult to address the two problems the Green Paperaims at—public disengagement with the democratic process and the need tobuild social cohesiveness around a stronger sense of ‘‘Britishness’’—withoutconsidering the role of the European Union. Attempts to reinvigorate theHouse of Commons’ powers vis-a-vis the executive need to acknowledgethat a significant proportion of policy and legislative initiatives stems from theEuropean Union rather than the UK Government. Also notable by its absence,in this context and others, is any reference to referendums as a methodof re-engaging the public with the democratic process. The Conservativesand the Liberal Democrats both support a referendum on ratification of theEU Reform Treaty, but the Government has ruled out any review of theconstitutional principles that ought to govern when referendums are called onmajor constitutional reforms.8

Also absent from the Green Paper is a clear vision for the future of devolution.Indeed, paras 141–144 of the Green Paper make strange reading. This passagehas about it the air of a piece of text that has been ‘‘cut and pasted’’ out ofcontext. No policy proposals are made. It is perhaps intended to be a riposte tothe Conservatives’ call for English votes for English laws, but does not addressthis directly. This next round of constitutional reform takes place at a timewhen the devolved governments in Scotland, Wales and Northern Ireland allinclude ministers whose ultimate political aim is to break the link betweenthose nations and the United Kingdom. Another gap is that little is said aboutthe role of the reformed House of Lords.

Consensus and controversy

Many aspects of the Brown-Straw reform agenda will receive support from theConservatives and Liberal Democrats. The project to reform the prerogativepowers—starting with prior parliamentary authorisation for troop deployments,putting the ‘‘Ponsonby rule’’ on statutory footing to ensure scrutiny of treatiesahead of ratification, and the principle of a Civil Service Act—enjoys broadcross-party support. Giving greater powers to the House of Commons tohold the executive to account is a motherhood and apple pie issue; butthe opposition parties will want a great deal more than is on offer in theGreen Paper. An all-party Business Committee to control the Commons

8 Lord Dyke recently asked whether the Government ‘‘will review the extent to which referenda onmajor national constitutional issues are compatible with the role of the elected representatives of thepeople in the House of Commons’’. The answer: ‘‘The Government have no plans to do so. Parliamentis sovereign in the UK political system. This means that it is for the Government to take a view andfor Parliament to decide whether or not to hold a referendum on any particular issue—and what theterms of that referendum should be’’ (Lord Hunt of Kings Heath, Hansard, HL col.WA193 (October30, 2007).


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timetable and select committee chairmen elected by the whole House arelikely to be steps too far for the Government—though to Jack Straw’s credithe has indicated a willingness to debate such issues.9 For the Conservatives,‘‘the English Question’’ is a live constitutional problem sidestepped by theGreen Paper and they (with Liberal Democrat support) are arguing that Billsrelating to England only should be scrutinised and voted on only by MPs forEnglish constituencies. The Prime Minister, not least because he represents aconstituency in Scotland, will not give way on this.

Next steps

By late October 2007, four consultation papers on specific aspects of the reformagenda had been published: on judicial appointments; on troop deploymentpowers and treaty-making (other prerogative powers will follow); on protestsoutside Parliament; and on reform of the role of the Attorney General. Subjectto the outcomes of the consultation processes, a Draft Constitutional RenewalBill is expected in early 2008 and will be subject to pre-legislative scrutiny inParliament,10 probably by a Joint Committee of both Houses.

Meanwhile, a ‘‘national conversation’’ is taking place, led by Jack Straw,involving a series of citizens’ workshops and summits at local, regional andnational level. Gordon Brown was quick to dismiss the idea that there shouldbe a single constitutional convention ‘‘of the great and the good’’, promptingAnthony King’s wry observation, citing events in Philadelphia in 1787, that‘‘well-considered and durable constitutions do actually emerge from gatheringsof the great and the good—and from nowhere else’’.11 A central aspect of thenational conversation will be ‘‘to work with the public to develop a Britishstatement of values that will set out the ideals and principles that bind ustogether as a nation’’. The Government expects tolerance to emerge as a,possibly the, central value.12 As part of the discussion on Britishness, LordGoldsmith, the former Attorney General, will make a report on citizenshipto the Prime Minister in March 2008. The relationship between the Britishstatement of values (which is not the same as a statement of British values) andthe British Bill of Rights and Duties remains to be seen.

Andrew Le Sueur*

9 House of Commons Constitutional Affairs Committee, Transcript of uncorrected evidence, July24, 2007 (to be published as HC Paper No.987-i).

10 The Government’s concession of a draft Bill and pre-legislative scrutiny for this constitutionalmeasure is in itself a significant development. Despite the Blair administration’s stated support for draftBills as a way of improving the policy-making and legislative process, no major constitutional reformBill was introduced in this way.

11 ‘‘Constitutional Fiddling’’, Prospect Magazine, September 2007. Jack Straw responds to this pointby saying that there was no parliament in Philadelphia in 1787.

12 Gordon Brown, ‘‘On Liberty’’ (speech delivered at the University of Westminster, October 25,2007; Jack Straw), fn.1 above.

* Department of Law, Queen Mary, University of London.


Analysis 25

Table 1: Summary of principal reforms proposed (numbers in[square brackets] refer to paragraphs in the Green Paper)

Initiative How and when to beimplemented

Publishing a draft legislativeprogramme some months ahead ofQueen’s Speech [101]

Executive action. The first draftprogramme published in July 2007:The Governance of Britain: theGovernment’s Draft LegislativeProgramme, Cm.7175. Earlierpublication in future years.

Reform of Attorney General’srole [24]

Consultation: The Governance ofBritain: a Consultation on the Role ofthe Attorney General, Cm.7192); to beincluded in the Draft ConstitutionalRenewal Bill.

Deployment of armed forces [25] Consultation: The Governance ofBritain: War powers and treaties; limitingExecutive powers, Cm.7239. Eitherprimary legislation (if so, included inthe Draft Constitutional RenewalBill) or a new convention recognisedby parliamentary resolutions.

Parliamentary involvement inratification of treaties [31]

Consultation: The Governance ofBritain: War powers and treaties; limitingExecutive powers, Cm.7239. To beincluded in the Draft ConstitutionalRenewal Bill.

Regulation of the civil service ona statutory footing rather thanprerogative legislation [40]

Consultation with unions but not thepublic on the basis of the November2004 Draft Civil Service Bill. To beincluded in Draft ConstitutionalRenewal Bill.

Review of other prerogativepowers [51]

Primary legislation to abolish or putvarious powers on a statutory footing.A complex project unlikely to cometo fruition during the 2007/08Session, except for abolition of theprerogative of mercy to be includedin Draft Constitutional Renewal Bill.

Prime Minister to seek approval ofHouse of Commons beforeseeking dissolution for a generalelection [35]

Executive action followingconsultation which ‘‘will, throughprecedent, become a constitutionalconvention’’.


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Table 1: (Continued)


Allow Speaker of the House ofCommons to consider a requestfrom a majority of MPs for arecall, not merely (as at present)following a request from thegovernment [37]

Amendment to the Standing Ordersof the House of Commons,presumably during 2007/08 Session.

Reform of government’s role inChurch of England appointments[57]

Primary legislation may be neededbut executive action has already ledto Prime Minister no longer havingdiscretion in relation to selection ofbishops.

Reform of judicial appointments[69]

Consultation on options: TheGovernance of Britain: JudicialAppointments, Cm.7210. Primarylegislation may be needed to amendthe Constitutional Reform Act 2005.

House of Commons role inrelation to other publicappointments [74]

To be included in DraftConstitutional Reform Bill.

Limiting ministers’ involvement inthe granting of honours [85]—butnot peerages

Executive action with immediateeffect.

Intelligence and SecurityCommittee to operate so far aspossible like other selectcommittees [92]

To be included in the DraftConstitutional Reform Bill.

Annual debates in House ofCommons on main departments’objectives and plans [103]

Consultation with ModernisationCommittee leading to changes inparliamentary practice, probablyduring 2007/08 Session.

Independence for the Office ofNational Statistics [112]

Statistics and Registration Service Actreceived Royal Assent in July 2007.

Nine regional ministers forEnglish regions, to be shadowedby nine regional select committees[115], [119]

Ministerial appointments byexecutive action with immediateeffect; select committees are a matterfor the House of Commons.

(continued overleaf )


Analysis 27

Table 1: (Continued)


Ministerial Code amended invarious ways, with a newIndependent Adviser [121]

Executive action with immediateeffect.

Reform of composition of Houseof Lords to make it ‘‘substantiallyor wholly elected’’ [129]

Primary legislation will be requiredfollowing cross-party discussions; Billunlikely to be introduced during2007/08 Session.

Arrangements on election day[149], including weekend voting

Primary legislation will be required.

Review of voting systems [155] Executive action, due to becompleted by end of 2007.

Public petitions [157] House of Commons ProcedureCommittee to considerimprovements to the way thatpetitions to Parliament are receivedand considered.

Easing restrictions on protestsaround Parliament [164]

Consultation followed byamendment of the Serious OrganisedCrime and Police Act 2005, probablyduring 2007/08 Session

Right of charities to campaign[167]

Primary legislation may not beneeded.

Local communities [169] Consultation on various ways ‘‘toenhance democracy by devolvingmore power directly to the people’’.


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The Privy Council overrules itself—again!

Judicial decision-making; Jurisprudence; Precedent; Privy Council

Three times since the beginning of the 21st century the Judicial Committee ofthe Privy Council (JCPC) has exercised its undoubted power to overrule itsown earlier decisions: in Lewis v Attorney General (Jamaica),1 Boyce and Joseph vThe Queen2 and, most recently, in Gibson v Government of the United States ofAmerica.3

In this last-mentioned case the JCPC overruled its earlier decision inCartwright v Superintendent of HM Prison4 in which the Board had held, by amajority of three to two, that an appeal against a grant of habeas corpus bya judge of the Supreme Court of Bahamas, which did not fall within s.11(5)of the Extradition Act 1994, was nonetheless covered by s.17(3) of the Courtof Appeal Act (as amended); which provides for a right of appeal against:‘‘any declaratory order, order of mandamus, order of prohibition or order ofcertiorari made by the Supreme Court in any proceedings’’. While the Board’sconclusion that the Court of Appeal did not, in fact, have jurisdiction unders.17(3) to deal with an appeal against a grant of habeas corpus was in itselfuncontroversial—all seven members of the Board agreed upon this point—theBoard was deeply divided on the question of whether it should overrule itsearlier decision in Cartwright.

Unlike the House of Lords, which only recognised a power to overruleits own decisions following the issue of the Practice Statement in 1966,5 theJCPC has never considered itself to be bound by its own prior decisions.6 Thisdifference reflects other differences in the practice and procedure of the JCPC,the role of which is to advise the sovereign and which, though based in London,is, in fact, a Commonwealth court. Furthermore, until 1966 the JCPC couldnot deliver dissenting judgments and even then assenting judgments were notpermissible.7 Notwithstanding the existence of the power to overrule its owndecisions the JCPC has always recognised that it should be exercised with greathesitation,8 and previously the power had only been exercised on a handful ofoccasions, of which the most recent and, perhaps, well known is the decisionin Pratt and Morgan v Attorney General (Jamaica).9 In this case the Board decided

1 [2001] 2 A.C. 50.2 [2004] UKPC 32; [2005] 1 A.C. 400.3 [2007] UKPC 52; [2007] 1 W.L.R. 2367.4 [2004] UKPC 10; [2004] 1 W.L.R. 902.5 Practice Statement (HL: Judicial Precedent) [1966] 1 W.L.R. 1234.6 Cushing v Dupry (1880) 5 App. Cas. 409; Read v Bishop of Lincoln [1892] A.C. 644; Will v Bank of

Montreal [1931] W.W.R. 364 and Gideon Nkambule v R [1950] A.C. 379.7 It should also be noted that the JCPC has never regarded itself as bound to follow decisions of

the House of Lords and recently refused to follow the House of Lords on the law of provocation: seeAttorney General (Jersey) v Holley [2005] UKPC 23; [2005] 2 A.C. 580.

8 Attorney General (Ontario) v Council Temperance Federation [1946] A.C. 193.9 [1994] 2 A.C. 1.


Analysis 29

to overrule the earlier decision in Riley v Attorney General (Jamaica) and to allowprolonged delay to be taken into account in determining whether the carryingout of the death sentence violated a constitutional guarantee against inhumanor degrading punishment. To an extent, the Board’s decision to exercise itsoverruling power in this case was made easier by the fact that all nine membersof the Board were unanimous in concluding that the earlier decision in Rileyshould be overruled. However, in the three most recent instances in whichthe JCPC has overruled itself, the question of whether they should overrule anearlier decision has deeply divided the members of the Board.

The aim of this article is, therefore, to look at the differing approaches of themajority and dissenting minority in each of these three cases and to ask whether,despite the differences in approach, it is still possible to identify some commonprinciples underpinning the exercise of its overruling power by the JCPC.

Recent overruling cases

LewisThree distinct questions arose on this appeal from Jamaica. Put broadly, theywere as follows: first, whether the exercise of the prerogative of mercy isjudicially reviewable; secondly, whether a condemned prisoner has the rightnot to be executed before his petition to an international human rightsbody has been concluded; and, thirdly, whether the passage of time andthe way that a condemned prisoner is treated in prison could violate theconstitutional guarantee against inhuman or degrading treatment so as to leadto the commutation of the death sentence. Whether or not the Board shouldoverrule an earlier decision had to be answered separately in relation to eachof these questions.

The first question had previously been considered by the Board on twooccasions, in De Freitas v Benny10 and Reckley v Minister of Public Safety and Immi-gration (No.2),11 and on both occasions the Board had ruled that the exercise ofthe prerogative was non-justiciable. In considering whether or not to overrulethese earlier decisions, in particular Reckley (No.2), the majority acknowledgedthat the need for legal certainty demanded that they should not depart fromsuch a recent decision which had been fully reasoned unless there were stronggrounds to do so. However, where—as here—a man’s life was at stake, themajority considered that they were not obliged to abide rigidly by the principleof stare decisis; the earlier decision could be overruled so long as they weresatisfied that the Board in the earlier case had adopted a ‘‘wrong approach’’.12

The second and third questions had also both been the subject of veryrecent decisions of the Board. In Fisher (No.2) v Minister of Public Safety andImmigration13 and Higgs v Minister of National Security,14 both on appeal from

10 [1976] A.C. 239.11 [1996] A.C. 527.12 [2001] 2 A.C. 50 at 75.13 [2000] 1 A.C. 434.14 [2000] 2 W.L.R. 1368.


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the Bahamas, the Board had expressly rejected the argument that a prisonerenjoyed a constitutional right not to be executed prior to the completion ofhis petition to an international human rights body, such as the Inter AmericanCommission of Human Rights (IACHR). While it is true that in betweenthese two decisions, in Thomas v Baptiste,15 the Board had held on almostidentical facts that the ‘‘due process’’ clause contained in the Constitution ofTrinidad and Tobago should be read as including the right of a condemnedprisoner to complete his petition to the IACHR before being executed, theBoard also said in Thomas that this did not mean that the ruling in Fisher(No.2) was wrong. Instead, it held that the ruling in Fisher (No.2) should bedistinguished on the basis that the Constitution of the Bahamas, unlike theConstitution of Trinidad and Tobago, did not contain an express ‘‘due process’’clause. In Lewis, the majority sidestepped this somewhat inconvenient fact byupholding that aspect of Thomas which recognised the right of a condemnedprisoner to await the outcome of his petition to the IACHR before he wasexecuted; while, at the same time, disregarding that aspect of the ruling whichheld that the recognition of such a right could not extend to a constitution,such as the Constitution of Jamaica, which did not include an express ‘‘dueprocess’’ clause. In Thomas and Higgs, the Board had also expressly rejectedthe argument that prison conditions, even if they violated the constitutionalguarantee against inhuman or degrading treatment, could of themselves leadto a commutation of the death sentence, on the ground that there was not asufficient ‘‘nexus’’ between the conditions in which a prisoner was held andhis execution.16

In overruling the Board’s earlier decisions in Fisher (No.2) and Higgs, onthe right of a condemned prisoner to await the outcome of his appeal to theIACHR before he is executed, and in Thomas and Higgs, on the relevance ofprison conditions to the commutation of the death sentence, the majority inLewis made little or no attempt to explain why these decisions were wrong.This caused Lord Hoffmann, in an exceptionally critical dissenting opinion, totake issue, not only with the majority’s decision on the three questions arisingon the appeal, but also with the majority’s approach to the principle of staredecisis. Citing the majority judgment of the US Supreme Court in PlannedParenthood of Southeastern Pennsylvania v Casey,17 Lord Hoffmann argued that theBoard should not overrule a previous decision unless a justification for doing socould be advanced, which extended ‘‘beyond a doctrinal disposition to comeout differently’’. This rule was particularly relevant, in Lord Hoffmann’s view,to a court such as the JCPC which has a continually fluctuating membership:

‘‘If the Board feels able to depart from a previous decision simply becauseits members on a given occasion have a ‘‘doctrinal disposition to comeout differently,’’ the rule of law itself will be damaged and there will beno stability in the administration of justice in the Caribbean.’’18

15 [1999] 3 W.L.R. 249.16 Higgs, at 1381E.17 505 U.S. 833 (1992).18 [2001] 2 A.C. 50 at 90.


Analysis 31

BoyceIn this case, on appeal from Barbados, which was argued before an enlargedpanel of seven members, the Board had to consider the constitutionality ofthe mandatory death penalty for murder pursuant to s.2 of the OffencesAgainst the Person Act 1994.19 Since the Board had already held in Reyesv The Queen20 that a mandatory death penalty violated the guarantee againstinhuman or degrading punishment to be found in all of the independenceconstitutions of the Commonwealth Caribbean, the only question for theBoard to consider in Boyce and Joseph was whether the mandatory death penaltywas saved from constitutional challenge by a general savings clause in theConstitution of Barbados,21 which provides that no existing law shall be held tobe inconsistent or in contravention of the fundamental rights guaranteed by theConstitution. Counsel for the appellants sought to argue that, notwithstandingthe savings clause for existing laws, s.2 should be construed by reference to themodifications clause contained in s.4(1) of the Barbados Independence Order,which provides that:

‘‘[E]xisting laws shall be construed with such modifications, adaptations,qualifications and exceptions as may be necessary to bring them intoconformity with [the Constitution].’’

The effect of construing s.2 through the prism of the modifications clausewould be to substitute a discretionary death penalty in place of the mandatorydeath penalty, thereby bringing it into conformity with the Constitution. Infact, the Board had already considered this self-same question a few monthsearlier in relation to the Constitution of Trinidad and Tobago, in Roodal vThe State,22 and in that case had held that pursuant to a similar modificationsclause to be found in s.5(1) of the Constitution Act 1976, a law prescribing amandatory death penalty for murder23 would be read as providing instead fora discretionary death penalty.

In rejecting the appellant’s argument in relation to the Constitution ofBarbados, and overruling the earlier decision in Roodal, Lord Hoffmann,delivering judgment for the majority, acknowledged that ‘‘ordinarily therewould be powerful arguments’’ for not departing from the earlier decision. Heargued, however, that the Board was justified in doing so in this case becausethe issue was one of great public importance in relation to the constitutionalityof the death penalty and because the effect of following the decision inRoodal would have been to lay open the whole of the pre-independencelaw of Barbados to constitutional challenge for lack of conformity with thefundamental rights guaranteed by the Constitution. In Lord Hoffman’s viewthese constituted ‘‘exceptional circumstances’’ which justified the overrulingof Roodal. The minority, while maintaining that the decision in Roodal was

19 Which replaced s.2 of the Offences Against the Person Act 1868.20 [2002] UKPC 11; [2002] 2 A.C. 235.21 s.26.22 [2003] UKPC 78; [2005] 1 A.C. 328.23 Offences Against the Person Act 1925 s.4.


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right and that the majority’s reading of the Constitution was ‘‘not the onlypossible reading’’, did not seek to mount any challenge to the justificationsoffered by Lord Hoffmann for overruling the decision in Roodal.

GibsonIn contrast to Lewis and Boyce, in both of which the Board was divided onthe substantive issue(s) raised by the appeal, all seven members of the Boardin Gibson agreed that the Board’s earlier ruling in Cartwright was wrong. Theywere, however, still divided four to three on the question of whether it shouldbe overruled.

Delivering judgment for the majority, Lord Brown acknowledged that thepower to overrule should be exercised ‘‘sparingly’’ and also conceded that,as Lord Reid had observed in R. v National Insurance Commissioner Ex p.Hudson, the power should ordinarily only be exercised where the previouswrong decision was ‘‘thought to be impeding the proper development ofthe law or to have led to results which were unjust or contrary to publicpolicy’’.24 Though neither of those factors was present in this case, LordBrown considered that the Board would still be justified in overruling thedecision in Cartwright for the following reasons. First, the members of theBoard were unanimous in holding that Cartwright was wrong. Secondly, theanswer to the question posed in Cartwright did not depend on the properconstruction of a complicated statutory provision where it is possible to havemore than one view on which construction is right. Nor was it the kind of casewhere the Board was seeking to overrule an earlier decision simply because ‘‘anew majority are doctrinally disposed to come out differently’’. Thirdly, thecase concerned the liberty of an individual who, had the law been interpretedcorrectly, would not have been rearrested. Finally, the Board should recognisethat its task is ‘‘to ensure justice according to the law’’. Where, as here, theCourt of Appeal had no jurisdiction to entertain the appeal the Board ‘‘shouldnot now shrink from saying so’’.25

Lord Hoffmann, delivering judgment for the minority, found himself in thecurious position in Gibson of having been part of the dissenting minority inCartwright, but at the same time regarding himself as bound by the principleof stare decisis not to overrule the majority decision in Cartwright. In LordHoffmann’s view the power of a final appellate court to overrule an earlierdecision must be exercised ‘‘on some rational principles’’. In this regard theobservations of Lord Reid in Hudson provided an important guide, as did thecomments of the US Supreme Court in Planned Parenthood:

‘‘. . . a decision to overrule should rest upon some special reason over andabove belief that the prior case was wrongly decided.’’26

No such special reasons existed in this case. The decision in Cartwright wasnot impeding the proper development of the law. Following Cartwright, the

24 [1972] A.C. 944 at 966.25 [2007] UKPC 52; [2007] 1 W.L.R. 2367 at [28].26 505 U.S. 833 at 864 (1992).


Analysis 33

Bahamian Government had amended s.11(5) of the Extradition Act so asto confer a right of appeal against a grant of habeas corpus. Nor had thedecision led to a result which was unjust or contrary to public policy. Quitethe opposite: the decision had allowed the correction of a plain miscarriageof justice, the original grant of habeas corpus to the appellant being itselfclearly based on an error of law; and supported public policy in allowing theBahamas to comply with its international obligations. Overruling an earlierdecision in such circumstances would only serve to encourage attempts torevisit cases decided by a narrow majority. As Lord Hoffmann had alreadynoted in Lewis, this could have the effect of seriously undermining the stabilityof the administration of justice in the Caribbean.

Principles of overruling: the ‘‘conservative’’ and ‘‘liberal’’approaches compared

In a comprehensive survey of the approach of the House of Lords towardsoverruling its earlier decisions,27 in the quarter century following the issue ofthe 1966 Practice Statement, J.W. Harris argues that, despite judicial reluctanceexpressly to affirm the principles that govern the exercise of the overrulingpower, it is nonetheless possible through a close analysis of their Lordships’reasoning to identify a set of core principles underpinning the exercise of thepower.

J.W. Harris takes as his starting point the oft-repeated dictum that‘‘wrongness’’ is not enough of itself to warrant an earlier decision beingoverruled. The values inherent in the principle of stare decisis, such as finality,stability and consistency, which promote public confidence in the judicialsystem, require that before the overruling power can properly be invoked itmust not only be shown that the earlier decision was wrong but also that thepresent law, all things considered, would be improved if the earlier decisionwere overruled.28 Even then, however, the power to overrule is only a primafacie power and is subject to a number of constraining principles, by far themost important of which is the ‘‘no new reasons’’ principle which is linkedto the rationale of finality. This means that even where it is arguable thatthe law would be improved if the earlier decision were overruled, a finalappellate court may still decline to exercise its overruling power in the absenceof new distinct reasons which were not considered by the court when theearlier decision was reached, unless two further conditions are satisfied. First,that the earlier decision is believed to be ‘‘objectively’’ wrong; and, secondly,that the earlier decision concerns a principle so ‘‘fundamental’’ that the courtregards itself as obliged to enforce its own view of the matter. Accordingto J.W. Harris’s scheme, ‘‘objective’’ wrongness is to be distinguished from‘‘impressionistic’’ wrongness. In the former case there is a perception thatthere is an objectively right answer to the question facing the court: ‘‘it is not

27 J.W. Harris, ‘‘Towards Principles of Overruling—When Should a Final Court of Appeal SecondGuess?’’ (1990) 10 O.J.L.S. 135.

28 See also Practice Statement (HL: Judicial Precedent) [1966] 1 W.L.R. 1234.


34 Public Law

supposed on either side that there are two views . . . each of which is equallyplausible’’.29 In the latter case what separates those on either side is rather amatter of ‘‘subjective impression: there are ‘two tenable views’’’,30 or ‘‘twoeminently possible views’’.31

Where a decision is infected by ‘‘impressionistic wrongness’’, the finalityrationale holds sway and the court is not justified in overruling the earlierdecision. As Lord Wilberforce explained in Fitzleet Estates:

‘‘Nothing could be more undesirable, in fact, than to permit litigants,after a decision has been given by this House with all appearance offinality, to return to this House in the hope that a differently constitutedcommittee might be persuaded to take the view which its predecessorsrejected. True that the earlier decision was by majority: I say nothingas to its correctness or to the validity of the reasoning by which it wassupported. That there were two eminently possible views is shown bythe support for each by at any rate two members of the House. Doubtfulissues have to be resolved and the law knows no better way of resolvingthem than by the considered majority opinion of the ultimate tribunal. Itrequires much more than doubts as to the correctness of such opinion tojustify departing from it.’’32

Where, on the other hand, the decision is infected by ‘‘objective’’ wrongness,and involves a ‘‘fundamental’’ principle, a final appellate court is justified inoverruling an earlier decision on the ground that ‘‘fidelity to objective legaltruth on fundamental matters should prevail over the finality rationale’’.33 J.W.Harris accepts that there are no mechanical means by which decisions can beassigned to the categories of ‘‘impressionistic’’ or ‘‘objective’’ wrongness; oreven of deciding whether a decision relates to a principle of ‘‘fundamental’’importance. However, in the case of the rules and principles of the commonlaw ‘‘fundamentality’’ will depend upon a judgment about the importance ofthe rights they embody against the executive or the ‘‘mutual responsibilities ofcitizens’’ which they embody.

Though J.W. Harris claims no more for his framework of distinctions thanthat ‘‘it makes explicit the phenomenology of adjudication in overruling cases’’,his taxonomy clearly carries a strong normative force; giving precedence tothe values inherent in the doctrine of stare decisis, unless the earlier decision isseen to be ‘‘objectively’’ wrong and a ‘‘fundamental’’ principle is at stake. B.V.Harris is critical of this approach.34 This is, in part, because of the difficulty indefining what counts as ‘‘fundamental’’, but also because he does not accept

29 Harris, ‘‘Towards Principles of Overruling—When Should a Final Court of Appeal SecondGuess?’’, at p.189.

30 Hudson [1972] A.C. 944 at 996.31 Fitzleet Estates Ltd v Cherry (Inspector of Taxes) [1977] 3 All E.R. 996 at 999.32 Fitzleet Estates Ltd v Cherry (Inspector of Taxes) [1977] 3 All E.R. 996 at 999.33 Harris, ‘‘Towards Principles of Overruling—When Should a Final Court of Appeal Second

Guess?’’, at p.18934 B.V. Harris, ‘‘Final Appellate Courts Overruling Their Own ‘Wrong’ Precedents: The Ongoing

Search for Principle’’ (2002) 118 L.Q.R. 408.


Analysis 35

that the values inherent in the principle of stare decisis should automaticallytrump the other values that may be in play in the case; in particular, ‘‘thevalue of doing overall justice and improving the state of the law for thebenefit of both the immediate litigants and future society’’.35 In his view,the central weakness of the ‘‘no new reasons’’ principle is that it fails to takeinto account the possibility that reasons may be given a different and moreappropriate weighting in a subsequent appeal so as to produce a more ‘‘just’’decision. The principle thus confers an arbitrary advantage on the court initiallysetting the precedent, based on nothing more than ‘‘the fortuity that it wasthe first court that had the opportunity to set a precedent in respect of theissue’’.36 B.V. Harris would, accordingly, substitute for the ‘‘no new reasons’’principle a much more open-textured discretion, which would allow the courtsystematically to weigh up all competing considerations—the values inherentin the principle of stare decisis and the consequences of the perpetuation of awrong precedent—when deciding whether or not to exercise the overrulingpower.

While these alternative approaches to the exercise of the overruling powermay not map exactly on to the majority and minority judgments in Lewis andGibson there is a sufficient correspondence between them to suggest that in bothLewis and Gibson the majority favoured the more ‘‘liberal’’ approach advocatedby B.V. Harris, while the minority subscribed to the more ‘‘conservative’’approach endorsed by J.W. Harris.

Thus, in Lewis, the majority, having decided that the earlier decisionswere wrong, despite no new reasons being advanced, concluded that, overall,justice would be better served by allowing, inter alia, judicial review of theprerogative of mercy; and that this outweighed the benefits to be gained fromrigidly adhering to the principle of stare decisis. In Lord Hoffmann’s judgment,on the other hand, the failure to identify any new reasons fatally underminedthe argument for overruling the earlier decisions. In his view, what separatedthe members of the Board forming the majority in Lewis from the membersof the Board who formed the majority in the earlier decisions was a mere‘‘disposition to come out differently’’, which is not sufficient, according to theconservative approach, to displace the rationale of finality.

In Gibson, all seven members of the Board held that the decision in Cartwrightwas wrong and while the decision could reasonably be categorised as ‘‘objec-tively’’ wrong this would not be enough of itself, according to the conservativeapproach, to warrant the decision being overruled because the power to over-rule is also subject to the ‘‘no new reasons’’ constraint. Thus Lord Hoffmannsought to argue that, since no new reasons were advanced in Gibson that hadnot already been canvassed in Cartwright and since there was no ‘‘special reason’’for overruling the earlier decision, such as ‘‘improving the law,’’ the Board wasbound to abide by the principle of stare decisis. For the majority, on the other

35 Harris, ‘‘Final Appellate Courts Overruling Their Own ‘Wrong’ Precedents: The Ongoing Searchfor Principle’’, at p.417.

36 Harris, ‘‘Final Appellate Courts Overruling Their Own ‘Wrong’ Precedents: The Ongoing Searchfor Principle’’, at p.419.


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hand, the absence of new reasons was not an insuperable obstacle; whateverthe values inherent in the principle of stare decisis they were outweighed inthis case by the fact that the decision was concerned with the individual’s rightto liberty and the need ‘‘to ensure justice according to the law’’.

The correspondence with the liberal and conservative approaches may notbe so obvious in Boyce and Joseph, but it is arguable that the decision to overruleRoodal can still be accommodated within the conservative approach, subject totwo caveats. The first is that while Lord Hoffmann, for the majority, viewedthe argument adopted by the majority in Roodal with regard to the effectof the modifications clause as ‘‘objectively’’ wrong, it was, nevertheless, a‘‘possible’’ reading and the one preferred both by the majority in Roodal andby a substantial minority in Boyce. The second is that while Lord Hoffmannjustified the overruling of the decision in Roodal on the ground that it involveda matter of ‘‘great public importance,’’ it did not involve a ‘‘fundamental’’principle in the sense described by J.W. Harris. It was not concerned withguarding the rights of the individual against the executive, but rather the rightof the executive to rely on laws which violated the rights guaranteed by theConstitution so long as the laws were in force at the time of independence.

Conclusion

While three cases may not be enough on which to build a critical theory,the foregoing analysis suggests that the Board is developing two distinctapproaches to the exercise of its overruling power—a liberal and a conservativeapproach—both of which raise profound questions of policy and principlewhich are not easily resolvable.

In Lewis the majority believed that where a man’s right to life is at stakeall that is necessary to justify the exercise of the overruling power is a beliefthat the earlier decision was ‘‘wrong’’. It is submitted, however, that whilethe urge to overrule an earlier decision which is believed to be wrong andwhere the effect of overruling the decision could be to save a man’s life maybe irresistible, respect for the values inherent in the principle of stare decisisand the need to maintain public confidence in the judicial system also demandthe kind of close and detailed analysis of the reasons why the earlier decisionis adjudged to be wrong, which was conspicuously absent from the majority’sreasoning in Lewis. As Lord Hoffmann caustically noted:

‘‘On the [IACHR] issue, the majority have found in the ancient conceptof the due process of law a philosopher’s stone, undetected by generationsof judges, which can convert the base metal of executive action into thegold of legislative power. It does not however explain how the trick isdone.’’37

However, the conservative approach favoured by Lord Hoffmann is also notwithout its difficulties, as demonstrated by the decision in Boyce. Why shouldthe reasoning of the majority in Boyce be considered sufficiently superior to

37 [2001] 2 A.C. 50 at 88.


Analysis 37

justify overruling the decision of the majority in Roodal? And even if upholdingRoodal would have meant that the pre-independence laws of Barbados would besubject to the fundamental rights guaranteed by the Constitution of Barbados,there are many who would argue that this would have been a very desirableoutcome.

Though falling squarely on the liberal side of the divide, the majorityjudgment in Gibson does at least offer some promise of a compromise betweenthese two approaches by striking a balance between the perceived need to dojustice while at the same time respecting the values inherent in the principle ofstare decisis. There is thus an implicit acknowledgment that the Board shouldbe less prepared to overrule an earlier decision ‘‘merely because a new majorityfavours a different approach to certain highly contentious issues’’. There isalso a conscious effort systematically to weigh up the competing considerationsfor and against overruling the earlier decision. Thus, in Gibson the need to‘‘ensure justice according to the law’’ where an individual’s liberty was atstake was deemed sufficient to justify overruling the earlier decision. Whilethe appeal to ‘‘justice according to the law’’ may appear to favour form oversubstance, it is arguable that public confidence in the administration of thejustice system was better served by overruling Cartwright than by allowing adecision, unanimously agreed to be wrong, to stand merely because it wasadjudged to produce the right result by preventing the appellant from escapingdeportation on a legal technicality. It is this latter argument which lies at thecore of Lord Hoffmann’s dissent and it comes uncomfortably close to the endsbeing used to justify the means.

Derek O’Brien*

* School of Social Sciences and Law, Oxford Brookes University. The author would like to thankthe anonymous referee for the very helpful comments on an earlier draft of this article.


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Enacting a British Constitution:Some Problems

Vernon BogdanorProfessor of Government, Oxford University

Stefan Vogenauer*

Professor of Comparative Law, Oxford University

Constitutional reform; Electoral process; Jurisprudence; Political parties

In The Law of the Constitution, Dicey wrote that a British writer on theconstitution ‘‘has good reason to envy professors who belong to countries suchas France . . . or the United States, endowed with constitutions on whichthe terms are to be found in printed documents, known to all citizens andaccessible to every man who is able to read’’.1 Britain remains, together withNew Zealand and Israel, one of just three democracies which are still not‘‘endowed’’ with a ‘‘written’’, or, more properly, a codified constitution.

It has, from time to time, been suggested that Britain would be betteroff with such a constitution. The Labour Party, during its long period inopposition between 1979 and 1997, came to the conclusion that constitutionalchecks and balances might be of value in helping to control what had becomein their view an elective dictatorship, and in 1991, a think tank sympatheticto the Labour Party, the Institute for Public Policy Research, published ahighly detailed Constitution for the United Kingdom.2 Since then, the argumenthas gathered strength, partly because of the large number of statutes of aconstitutional character that have been enacted since 1997. It seems that we

* We are grateful for comments on an earlier draft to Professor Anthony Bradley, Professor AndrewLe Sueur and Dr Andrew Stockley. But they are not to be implicated either in our arguments or ourconclusions.

1 A.V. Dicey, Introduction to the Study of the Law of the Constitution, 10th edn (Macmillan, 1959), p.4.2 Institute for Public Policy Research, 1991. See, on this exercise, James Cornford, ‘‘On Writing a

Constitution’’ (1991) 44 Parliamentary Affairs 558–571; Dawn Oliver, ‘‘Written Constitutions: Principlesand Practices’’ (1992) 45 Parliamentary Affairs 135–152; and Rodney Brazier, ‘‘Enacting a Constitution’’(1992) 13 Statute Law Review 104–127. See also Brazier, ‘‘How Near is a Written Constitution?’’ (2001)52 Northern Ireland Legal Quarterly 1–19.


Enacting a British Constitution: Some Problems 39

may have been undergoing a process, unique in the democratic world, with theexception of the Israeli experience, of transforming an uncodified constitutioninto a codified one, gradually and piecemeal without any sort of consensuson what the end result should be. It might seem natural, then, to suggestthat the process now be completed with the production of a fully codifiedconstitution. In October 2006, Lord Goldsmith, the then Attorney General,called for a debate on the subject3; and Gordon Brown, both as Chancellor ofthe Exchequer, and as Prime Minister, has suggested that a codified constitutionmight strengthen the sense of Britishness. The Green Paper issued shortly afterGordon Brown became Prime Minister suggests that ‘‘there is now a growingrecognition of the need to clarify not just what it means to be British, but whatit means to be the United Kingdom. This might in time lead to a concordatbetween the executive and Parliament or a written constitution.’’4 Amongstopposition parties, the Liberal Democrats have long been committed to acodified constitution.

In a letter to The Times, on February 8, 2006, Mr Stephen Hockman,Chairman of the Bar Council for England and Wales, argued that, followinga period of constitutional reform, ‘‘the vast majority of us lack a clear andcomprehensive understanding of what the terms of our constitution actuallyare’’. He therefore suggested enacting:

‘‘. . . a codifying measure, which would contain in a single piece oflegislation all the key constitutional principles and procedures whichunderpin the governance of the country. Such a measure would enableevery citizen to know and to understand how the British Constitutionworks, and above all would provide a clear framework against which tojudge not only the decisions and actions of those who govern us, but alsoany proposal which they may make for reform.’’

The drafting of a codified constitution is also, no doubt, a staple in manyuniversity courses on constitutional law. One of the authors of this articleremembers attending, many years ago as an undergraduate at Oxford, a seminaraimed at producing just such a document, given by F.H. Lawson, H.W.R.Wade, and the doyen of constitutional studies in Britain, K.C. Wheare.5

The two authors of this article decided to conduct a similar exercise atOxford in the autumn term of 2006. We held weekly meetings at which smallgroups of students from the law and political science faculties, both graduatesand undergraduates, prepared for discussion each week a specific section ofthe constitution, for example the legislature, the judiciary, human rights.Eventually, a complete constitution was achieved and it has been publishedby the Smith Institute as an appendix to a set of essays entitled Towards aNew Constitutional Settlement edited by Chris Bryant MP and in the PoliticalQuarterly, 2007.6

3 In an interview on ‘‘Sunday Live’’ Sky television on October 8, 2006.4 The Governance of Britain, Cm.7170 (July 2007), para.212.5 The author of, inter alia, Modern Constitutions (Oxford University Press, first published in 1951).6 Smith Institute, 2007.


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The exercise threw up a number of interesting issues concerning both thedesirability and the feasibility of a codified constitution. We have discussed,with Tarunabh Khaitan, the issue of the desirability of a British constitutionin a recent article.7 The purpose of what follows is to consider the issue offeasibility, or, more precisely, the problems which have to be resolved if it isdecided to enact a British constitution. We do not here attempt to considerissues of substance such as, for example, the questions of how the concept ofjudicial independence should be treated nor precisely what rights should beenacted in a constitution. Even so, the issues involved, are vast and complex,and we can do little more than outline them in perhaps crude summary form.

Scope

The first and most obvious problem is to decide what should be included.Stephen Hockman, in his letter to The Times, suggested that a constitutionshould include ‘‘[a]ll the key constitutional principles and procedures whichunderpin the governance of the country’’, (our emphasis). But perhaps that is autopian aspiration. A constitution, after all, enacts a selection of the rules whichcontrol the conduct of government in a state. If, moreover, the constitutionis to have, as Stephen Hockman would wish, an educative function, then itwould need to be comparatively short. A selection, therefore, would need tobe made amongst those laws and perhaps also conventions so as to isolate thosewhich express ‘‘constitutional principles and procedures’’.8

Dicey, who of course saw no value in an enacted constitution for Britain,analysed the Law of the Constitution, by isolating the main principles ofthe constitution—the sovereignty of Parliament, the rule of law and thedependence of conventions upon the law. In their book, Some Problems ofthe Constitution, Marshall and Moodie suggested a fourth principle, that ofministerial responsibility. The Constitutional Reform Act 2005 reiterates theprinciple of the rule of law and stresses the importance of judicial independence,which might perhaps be regarded as a fifth principle of the constitution.9

There would, however, be considerable difficulties in building an enactedconstitution around these principles. For they are very general in nature andmay easily conflict with each other. Indeed, Marshall and Moodie suggestedthat much of the constitutional history of Britain in the 20th century ‘‘mightbe represented as a conflict’’ between the principle of ministerial responsibilityand the principles of ‘‘the sovereignty of Parliament and the rule of law’’.10

7 ‘‘Should Britain have a Written Constitution’’, The Political Quarterly, (2007) 78, pp.499–517.8 See, for the distinction between a ‘‘people’s’’ constitution and a ‘‘lawyers’’’ constitution, The

Political Quarterly, (2007) 78, pp.503–505.9 In Canada, the Supreme Court has in recent years held that the constitution implies certain

unwritten constitutional principles, e.g. judicial independence, and has begun to enforce them as ifthey were explicit. See Peter W. Hogg, Constitutional Law of Canada, 5th edn (Scarborough, Ontario:Thomson/Carswell, 2006), pp.15, 52.

10 Geoffrey Marshall and Graeme C. Moodie, Some Problems of the Constitution, 5th edn (Hutchinson,1971), p.11.



It is by no means easy to determine the relative weight which each principleshould bear.

It would not be possible, therefore, to resolve the problem of selecting thoselaws and conventions which express ‘‘constitutional principles and procedures’’by deriving them from particular constitutional principles, since these principlesare bound to be highly general in form, sometimes in conflict, and subject tovery different and perhaps politically controversial interpretations. Moreover,as we shall see, if the principle of the sovereignty of Parliament is takenseriously, there is no real point in enacting a constitution.

In Modern Constitutions, Wheare suggests that in a unitary state:

‘‘. . . the Constitution needs to provide no more than the structure,in general terms, of the legislature, the executive and the judiciary; thenature in broad outline of their mutual relations; and the nature of theirrelations to the community itself.’’11

In addition, no doubt, most modern documents would be expected to containarticles defining citizenship and the territorial application of the constitution,together with articles defining the various territorial levels of government andtheir respective competences, as well as a declaration or bill of rights. Beyondthat, however, there is a striking diversity amongst enacted constitutions.Most contain a preamble in the form of a ‘‘mission statement’’, but somedo not. Some states add social and economic rights to the standard list ofrights, while others do not. There is therefore a staple core, but little realagreement on what should be contained in a constitution beyond that agreedcore.

The problem of selecting which rules should be enacted in a constitutionis bound to prove far more difficult to resolve in Britain than in mostother democracies which have enacted a constitution. That is because ‘‘ifwe investigate the origins of modern Constitutions, we find that, practicallywithout exception, they were drawn up and adopted because people wishedto make a fresh start’’.12 Most constitution-makers, do not therefore face thedifficulty of selecting from a huge inheritance of existing laws, customs andconventions. The American Founding Fathers, for example, were enacting aconstitution de novo, so as to replace a confederal entity with a federal one. TheIndian Constitution of 1950 marked national independence. Germany in 1949and France in 1958 enacted new constitutions to mark the beginning of newregimes. Constitutions are generally enacted when a constitutional momentarrives, following war, revolution, or colonial independence. Britain, however,would be seeking to enact a constitution that encapsulates and summarises theworking of a fully functioning political regime. Moreover, any regime with anuncodified constitution has of necessity been undergoing a perpetual processof adaptation and change. Thus, the enacting of a constitution would be anattempt to capture the essence of a tradition that was in the process of alteringwhile it was being described.

11 K.C. Wheare, Modern Constitutions, 2nd edn (Oxford University Press, 1966), p.34.12 Wheare, Modern Constitutions, p.6.


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Sidney Low declared in 1904, that:

‘‘There is one reason why the English method of government is so hardto describe. Any account of it must be like the picture of a living person.If you want to see exactly how the original appears, you do not refer toa photograph, taken twenty or thirty years ago. The features may be thesame, but their expression, their proposition, and their whole characterhave changed. In the interval between one examination of our publicpolicy and another, the formal part may not have greatly altered, but theconventional, the organic working portion has been modified in all sortsof ways. The structural elements it is true, exhibit a wonderful superficialpermanence. The Crown, the two Houses of Parliament, the Councilof Ministers, [i.e. the Cabinet], the Electorate, the Judicature, and themutual relations of these various powers and authorities are the materialof all the historians and jurists. There is the same machine, or at least amachine which is painted to look the same.’’13

The problem for the constitution-maker in Britain is that of deciding whichelements of a fully functioning system of government ought to be selectedas being of such special significance that they should be included in theconstitution, while the system of government is itself changing, and perhapschanging at a particularly rapid rate; for there is no reason to believe that theera of constitutional reform which began in 1997 has yet run its course.

One issue which could prove particularly controversial is that of whetherthe role of political parties and the electoral system should be specified in theconstitution. The US Constitution, drawn up before the advent of organizedpolitical parties, has nothing to say about them. The Founding Fathers proposeda constitution which reflected a fairly straightforward 18th century conceptionof the separation of powers. Many later constitutions have chosen to followthe American example, even though the existence of competing parties isnow a sine qua non of democratic government. The German Constitution of1949 is one of the few, however, which does seek to regulate the activities ofparties. Article 21 of the 1949 Constitution gives the Federal ConstitutionalCourt the power to declare unconstitutional any party which by reason of itsaims or the behaviour of its adherents, may ‘‘seek to impair or abolish thefree democratic order or to endanger the existence of the Federal Republicof Germany’’, and this provision has been used by the Federal ConstitutionalCourt to ban extremist parties, both on the radical left and the radicalright.

Free and fair competitive elections are equally fundamental to moderngovernment. Yet, hardly any constitutions specify in precise detail whatelectoral system is to be used in choosing the legislature. Those constitutionswhich mention the electoral system at all mostly content themselves withdeclaring simply that the system should be ‘‘proportional’’. The IrishConstitution of 1937 is a notable exception in that it provides in Art.16(2)(5)that the Dail is to be elected by the single transferable vote method of

13 S. Low, The Governance of England (T. Fisher Unwin, 1904), p.5.



proportional representation. This article, like the rest of the Constitution, canonly be amended by referendum. In post-war Ireland, Fianna Fail governmentshave twice, in 1959 and 1968, sought to alter the electoral system, but wererepudiated in referendums on both occasions. By contrast with Ireland, theFrench 5th Republic Constitution of 1958 is silent on the electoral system, andthis has enabled the government to alter it by ordinary legislation. Before the1986 parliamentary elections, President Mitterrand substituted proportionalrepresentation for the two ballot system, with the aim of weakening theparties of the Right, who stood to gain a large majority from the two ballotsystem. The elections were, nevertheless, won by the Right which, under thePrime Minister, Jacques Chirac, restored the two ballot system in time for thelegislative elections of 1988.

Of course, these differences between the constitutions of differentdemocracies reflect differences in historical experience, and yet they showthat, beyond a basic minimum core, there is often no clear boundary betweenwhat is constitutional and what is not. Ought a British constitution to regulatethe role of the political parties—should it include the main features of thePolitical Parties, Elections and Referendums Act 2000; should the parties berequired to be democratic in their organisation, should they be required tobe open and accountable in their financial arrangements? Should the electoralsystem be included in the constitution—and, if so, should it be just theelectoral system for Westminster, or also the various electoral systems used forthe devolved bodies and for local authorities? But the question of the rightelectoral system, whether for Westminster, or for local authorities is now verymuch a matter of political contention. It is possible that they will be alteredin the years to come—local authorities in Scotland have recently switchedfrom first past the post to the single transferable vote method of proportionallegislation, and there is some pressure in Wales for Welsh local authoritiesto be elected by that method. Moreover, it is not inconceivable that theelectoral system for the Commons itself will be changed in the foreseeablefuture.

The issue of the electoral system raises a further problem. Tony Blairpromised that there would be no change in the electoral system for the Houseof Commons without a referendum; and in a recent research paper, the Houseof Commons Library claims that there is a ‘‘constitutional convention thatchanges to the electoral system should be agreed as far as possible on an all-partybasis’’. It then goes on to declare in the next sentence, somewhat confusingly,that ‘‘[t]his convention is not universally observed’’.14 Should this supposedconvention be put into the constitution? Should the constitution enact thata change in the electoral system for the Commons requires a referendum?Clearly, a statute altering the electoral system which was not put to the peoplewould not be invalidated by the courts. But, some might argue that there isnow fairly widespread agreement amongst the political class that a change inthe electoral system for the Commons should require a referendum so as to

14 House of Commons Library: Standard Note: Speaker’s Conference, SN/PC/4426, September 12,2007, p.1.


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avoid governments manipulating the electoral system for political advantage,as occurred in France. The drafters of a British constitution, therefore, wouldhave to consider, first, whether the constitution should mention the electoralsystem at all; and secondly, whether there should be some provision thatchanges to the electoral system should require all-party agreement and/or areferendum.

The is and the ought: the role of conventions

The example of the electoral system shows that the enactment of a Britishconstitution would raise a number of very difficult and inter-related problems.There is first the difficulty of distinguishing between the constitution as it is andas we might think it ought to be; then there is the question of identifying whatthe constitution in fact is, since much of it is composed of conventions whosecontent and scope is at times unclear. Finally, there is the question of who isto have the authority to identify what the constitution is—should there be aRoyal Commission or a specially convened constitutional convention—and, ifthe latter, should it be appointed or elected—or could the task be entrusted toa parliamentary body?

The Institute for Public Policy Research draft constitution did not pretend tobe a codification of Britain’s current arrangements, but a reformed constitutionoutlining what its authors regarded as desirable political arrangements. Bycontrast, the constitution drawn up by the students in our Oxford seminar andpublished by the Smith Institute and the Political Quarterly was intended to bea codification of current arrangements. We sought to avoid political debate onthe right electoral system for the House of Commons, the future of the Houseof Lords, etc. Ministers, when they argue that there is a case for a constitutionare also, presumably, proposing a consolidation of current arrangements, ratherthan a wholly reformed system of government.

But the distinction between what the constitution is and what it oughtto be is by no means as clear as may appear at first sight. The problem isessentially that of deciding whether the constitution should enact the strictlylegal position, ‘‘a bare framework, compounded of statute law and the royalprerogative and presiding with a supposititious dignity over the real world offlesh and blood’’, a solution which de Smith characterised as one of ‘‘voluntaryschizophrenia’’15; or whether, by contrast, it should spell out in detail actualconstitutional practice, which would mean taking into account the conventionsof the constitution. For the fundamental reason why it is not as easy as it mayseem at first sight to distinguish between what the rules are and what theyought to be, is that the rules in many cases are based on conventions, and noton statute or judicial precedent. In a country such as the United States, witha codified constitution, when it is alleged that some action is unconstitutional,what is meant is that the action is contrary to the constitution. In Britain,

15 S.A. de Smith, The New Commonwealth and its Constitutions (Stevens, 1964), p.78. Ch.3 of thisbook provides an excellent account of the arguments for and against incorporating conventions intothe constitution.



by contrast, when it is alleged that some action is unconstitutional, what isusually meant is not that the action is contrary to the law in the strict sensebut that it is contrary to convention. Every constitution is likely to be basedto some extent on convention as well as law. But conventions are likely toplay a far larger and more prominent role in an uncodified constitution whichis the product of a long period of evolution. There are likely to be fewerconventions in a country such as Israel, which, like Britain lacks a codifiedconstitution, but is currently seeking to bring together its Basic Laws so as toenact one. For Israel did not begin as a state until 1948, and her history is notlong enough for her to have acquired a substantial accretion of conventions.In the case of a country seeking to draw up a constitution de novo as, forexample, with the German Basic Law in 1949, the problem of course does notexist.

The existence of conventions raises two fundamental problems—first howare they are to be identified, and distinguished from mere practices orusages; and secondly, which, if any conventions, ought to be included in theconstitution?

One authority has argued that by their very nature, it is impossible to identifyconventions with any degree of precision. ‘‘It is . . . very difficult to draw theline between an obligatory and a non-obligatory practice. The characteristic ofconventions, namely that they supplement the laws which are enforced by thecourts would seem to preclude their precise definition.’’16 If this were true,then it would be difficult for the constitution to contain a precise statementof, for example, the powers of the Queen. In fact, however, conventionsin other areas have been crystallised in recent years in the form of codes ofpractice for civil servants, ministers and MPs. It seems implausible to suggest,therefore, that conventions are inherently incapable of being identified andstated. Indeed, the courts have often recognised the existence of conventions.In Canada, the Supreme Court in Reference re Amendment of the Constitutionof Canada (1981), went even further than merely recognising a convention.It proceeded, for the first time in a common law jurisdiction, to adjudicate adispute as to whether a past practice—that of securing provincial consent toconstitutional amendments affecting the powers of the provinces—amountedto a convention or was merely a usage.17

In Australia, where the incorporation of conventions governing the role ofthe Queen and the Governor-General had first been suggested by Evatt, anappointed committee, confusingly called a Convention, composed of delegatesfrom the Commonwealth and State governments representing all of the majorparties, sought to identify the conventions of the Australian constitution. In1985, its report set out a list of 34 conventions governing such matters as therelationships between the Prime Minister, Governor-General and the Houseof Representatives. Its report was prefaced by the following statement: ‘‘This

16 E.C.S. Wade, ‘‘Introduction’’ to the 10th edn of Dicey’s Law of the Constitution, p.clv.17 (1982) 125 D.L.R. (3d.) 1. See Hogg, Constitutional Law of Canada, pp.1–26. The Supreme Court

decided by a majority vote that the practice amounted to a convention but was not legally binding.


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Convention recognizes and declares that the following principles and practicesshall be observed as conventions in Australia.’’18

Such an exercise requires us first to distinguish conventional rules frommere generalisations concerning political behaviour. It is, for example, thecase that, although Bills can be introduced into Parliament by any memberof the House of Commons or Lords, in practice, they have little chance ofreaching the statute book unless they are introduced or supported by ministers.That, however, is not a convention since it is not a normative statement,but a generalisation about the working of Parliament, and it would clearlybe inappropriate to put it into a constitution. Nor would it be satisfactory tofollow Wheare and define a convention simply as ‘‘a rule of behaviour acceptedas obligatory by those concerned in the working of the constitution’’.19 Forpolitical actors can easily be mistaken about what is obligatory. In 1955, forexample, when Sir Anthony Eden, as Prime Minister, wished to appoint LordSalisbury as Foreign Secretary, he was deterred by the supposed conventionthat the Foreign Secretary must be in the House of Commons.20 In 1960,however, Harold Macmillan succeeded in appointing as Foreign Secretaryfrom the Lords, Lord Home, and Margaret Thatcher followed this precedentin 1979 when she appointed Lord Carrington. Therefore, what Sir AnthonyEden and others in political circles regarded as a convention turned out not tobe a convention at all. If conventions are, as one authority has suggested, partof the ‘‘critical morality’’21 of the constitution, then discovering what they arecannot be an investigation of a historical or sociological kind, but inevitablyraises normative issues.

There is a need, therefore, to distinguish, as the Supreme Court in Canadadid, between a convention and a mere usage. But, once conventions have beenidentified, we need to consider the extent to which they should be embodiedin the constitution. It would surely be mistaken to say nothing more about thelegislative role of the head of state than that the Queen-in-Parliament enactslaw. For this would imply that the Queen is a real part of the legislative process.It would appear more sensible to state that the Sovereign normally assents tolegislation presented by the government, although some disagreement mayarise when it comes to specifying the precise circumstances under which theSovereign need not assent to legislation. Would George V, for example, havebeen acting constitutionally had he refused to assent to the Government ofIreland Bill of 1914 providing for a Home Rule parliament for Ireland? Hecertainly thought that he would have been, and constitutional authorities of

18 Details of the conventions can be found in the appendices to the article by Charles Sampfordand D. Wood, ‘‘Codification of Constitutional Conventions in Australia’’ [1987] P.L. 239–240. Seealso C. Sampford, ‘‘‘Recognise and Declare’. An Australian Experiment in Certifying ConstitutionalConventions’’ (1987) 7 O.J.L.S. 369–417; and H.V. Evatt, The King and His Dominion Governors(Oxford University Press, 1936).

19 Wheare, Modern Constitutions, p.122.20 The Earl of Avon, (Sir Anthony Eden), Full Circle (Cassell, 1960), p.274.21 Geoffrey Marshall, Constitutional Conventions (Oxford University Press, 1984), p.210. This book

offers a penetrating analysis of problems arising from the existence of constitutional conventions in theUnited Kingdom.



the stature of Dicey and Anson agreed with him. Indeed, Anson, author ofthe standard work, The Law and Custom of the Constitution, wrote to TheTimes in September 1913 justifying the use of the royal veto.22 It might,nevertheless, be agreed that a provision that the Sovereign normally assents tothe legislation should be inserted into the constitution. Other matters relatingto the powers of the head of state might be more difficult to resolve: underwhat circumstances, for example, is the Queen entitled to refuse a request for adissolution—an issue which could assume considerable significance in the caseof a hung parliament, even more so were a proportional system to be adoptedfor elections to the Commons in which case almost every parliament wouldprobably be hung.

What about conventions in other areas? It would, declares Jennings, be ‘‘asingular constitutional law which mentions the Cabinet because it is referred toin the Ministers of the Crown Act, 1937, but cannot say what it does . . . It is a‘constitutional’ law which says very little about the constitution.’’23 Should theconstitution enact the Sewel convention, that Parliament does not ‘‘normallylegislate with regard to devolved matters in Scotland without the consent ofthe Scottish Parliament’’?24 Should the precise powers of the House of Lordsbe specified? What are these powers? In law, the answer is clear. The Lordshave powers only over non-money Bills, which they can delay for just onesession, and over a Bill to prolong the life of Parliament on which they retainan absolute veto. They also have absolute power to reject secondary legislation,since the Parliament Acts apply only to primary legislation, secondary legislationbeing minimal at the time of the 1911 Parliament Act. Few, however, wouldaccept as a sensible statement of the constitutional position that the Lords enjoyan absolute power to reject secondary legislation. For the powers of the Houseof Lords are limited not only by statute but by convention.

The Salisbury convention, formulated as a compact between theConservative and Labour parties in 1945, the first occasion since the 1911Parliament Act when the then Conservative-dominated House of Lords faceda majority government of the left, provides that the Lords does not opposemeasures included in the governing party’s manifesto on second or thirdreading.25 By convention, also, the Lords do not normally reject secondarylegislation. Thus, it may seem that, just as the section on the head of stateshould include the conventional rule that the Queen does not normally rejectlegislation presented to her by her government, the section on the House ofLords should also include the conventional rules as well as the legal rules.

It would, however, be difficult to enact the Salisbury convention in aconstitution for two reasons. The first is that its provisions are bound to behighly flexible and therefore unenforceable. That indeed was the conclusion

22 See Vernon Bogdanor, The Monarchy and the Constitution (Oxford University Press, 1995),pp.122–135. Anson’s letter is reprinted in I. Jennings, Cabinet Government, 3rd edn (CambridgeUniversity Press, 1959), p.541.

23 I. Jennings, The Law and the Constitution, 5th edn (University of London Press, 1959), pp.70–71.24 Hansard, HL Vol.592, col.791 (July 21, 1998).25 Royal Commission on Reform of the House of Lords, A House for the Future, 2000, Cm. 4534,

para.4.21.


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reached in 2005 by a Joint Committee on Conventions established to considerthe practicality of codifying the various conventions affecting the relationshipsbetween the two Houses, including the Salisbury convention. Its report,Conventions of the UK Parliament,26 contains valuable material on the difficultiesof precisely defining the conventions regulating the Lords. The Committeedeclared27 that the convention had evolved since 1945 and should now becalled the Government Bill Convention. It also declared28 that the Lordsshould not reject secondary legislation other than in exceptional circumstances.It declined, however, to define what these circumstances might be. TheCommittee concluded that:

‘‘All recommendations for the formulation or codification of conventionsare subject to the current understanding that conventions as such areflexible and unenforceable, particularly in the self-regulating environmentof the House of Lords.’’29

The second difficulty, and one which the Committee did not fully confront,is that the Salisbury convention has now become a matter of party politicalcontroversy. It was accepted with little questioning until the House of LordsAct of 1999, but some now argue that this Act removes the basis upon whichthe convention was based. For the Act provided that all but 92 of the hereditarypeers should no longer be members of the House of Lords. In consequence,there is no longer a permanent one-party Conservative majority in the Lords.At the time of writing, it is the Labour Party which forms the largest groupingin the Lords, although without an overall majority. Indeed, a new conventionseems to have been developed according to which no single political groupingshould ever again enjoy an overall majority in the Lords.

As a result of these developments, Liberal Democrats now claim thatthe convention, to which the Liberals were not a party, served to regulaterelationships only when the Lords was a predominantly one-party chamber.Now that this is no longer the case, it should, they argue, be replaced by a newconvention more appropriate to modern times. ‘‘The Salisbury convention’’,Lord McNally, the leader of the Liberal Democrats in the Lords, argued in adebate in the Lords on January 26, 2005, ‘‘was designed to protect the non-Conservative government from being blocked by a built-in hereditary-basedmajority in the Lords. It was not designed to provide more power for whatthe late Lord Hailsham rightly warned was an elective dictatorship in anotherplace against legitimate check and balance by this second Chamber.’’30 In alater debate, he declared ‘‘I do not believe that a convention drawn up 60years ago on relations between a wholly hereditary Conservative-dominatedHouse and a Labour Government who had 48 per cent of the vote shouldapply in the same way to the position in which we find ourselves today’’.31

26 HL Paper No.265 and HC Paper No.1212, 2006.27 HL Paper No.265 and HC Paper No.1212, 2006, paras 99 and 117.28 HL Paper No.265 and HC Paper No.1212, 2006, para.227.29 HL Paper No.265 and HC Paper No.1212, 2006, para.281.30 Hansard, HL Vol.668, col.371 (January 26, 2005).31 Hansard, HL Vol.672, col.20 (May 17, 2005).



The government, by contrast, argues that the Salisbury convention should stillbe observed. For the rationale of the Salisbury convention, in its view, liesin the House of Lords being non-elected, not merely in its being a chamberpermanently dominated by one party.

It is therefore not always clear whether there is a convention in a particulararea nor what obligations it entails. One example, which greatly exercisedthe students in our Oxford seminar, was whether the vote in the House ofCommons on March 18, 2003 before the Iraq war created a convention sothat in future a government would be acting unconstitutionally if it sought todeploy troops without a parliamentary vote. During the debate before the vote,Jack Straw, the Foreign Secretary, had declared that it was ‘‘constitutionallyproper in a modern democracy’’ for the government to seek ‘‘explicit supportof the House of Commons for military action’’.32 The students, after somediscussion, suggested that a convention had been created by this one precedent,and that this convention ought to be embodied in the constitution.

Perhaps the safest course to follow when it is unclear whether a conventionexists or what its scope might be is to enact, by contrast with the section onthe head of state, only the legal rule, leaving the precise specification of theconvention to be fought over by the politicians. But this might not be whollysatisfactory. For, in the case of the House of Lords, if only the legal rule wereenacted, this might seem to legitimise the arguments of those who, like LordMcNally, believe that the Lords should no longer be bound by the Salisburyconvention. That would allow the Lords, acting within its legal powers, torender the last year of a government’s life a nullity from the legislative pointof view. Moreover, a constitution which failed to contain the convention thatthe Lords do not normally reject subordinate legislation could legitimise thisweapon too, and that would be an even more serious incursion upon theprerogatives of the government of the day. Yet, were the non-elected Lordsto persist in rejecting government legislation, they would almost certainly beaccused of acting unconstitutionally. It would hardly be satisfactory to replyby referring to a document which contained merely the legal rule. If theconventions relating to the Lords were to be excluded, an enacted constitutionwould do little to clarify the precise role of the upper house.

Conventions, therefore, may be very general and their proper interpretationis by no means always obvious. It may be objected that the same is often trueof statutory rules; these, however, can be interpreted by the courts. There is,by contrast with the Canadian experience, no similar umpire in the case ofconventions in the United Kingdom. Where the interpretation of a conventionis unclear, its resolution tends to depend upon political developments ratherthan the judgment of the courts. Use of the personal prerogatives by the headof state, for example, has been greatly limited by the development of a twoparty system, which has meant that the Queen has not been called upon touse her discretion as to who to appoint as Prime Minister nor whether toaccept a prime ministerial request for a dissolution. The answer, when there

32 Hansard, HC Vol.401, col.900 (March 18, 2003).


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are only two parties, is generally obvious. But this could change in the caseof a hung parliament where the answers would no longer be obvious; while,if the Commons came to be elected by proportional representation, everyparliament would probably be hung since no government has achieved 50per cent of the vote since 1935. This could significantly alter the role of theQueen.33

An enacted constitution which codifies conventions might seem to entaila considerable juridification of constitutional arrangements. What in the pastwas essentially political might now become a question of constitutional law.It would in theory be for the courts to decide how conventions should beinterpreted. They would no longer be dependent upon political vicissitudes, butmight become justiciable. But this raises very large problems. Could the courtsreally decide, for example, what the principle of ministerial responsibilityentails? Would this involve them laying down precise rules as to whatinformation ministers ought to disclose to Parliament, and the circumstancesunder which ministers ought to resign following administrative fault? If so,the courts would come to play a far more central role in the political processthan they have ever performed hitherto. The courts, however, faced withsuch questions, would almost certainly resist being brought into the politicalprocess, and would probably adopt the ‘‘political questions’’ doctrine that theUS Supreme Court has often, though not invariably, adopted when faced withissues relating to the doctrine of the separation of powers. The German courtstoo have adopted a broadly similar doctrine of judicial restraint.

Conventions, however, may be of very different types. Some may be quitefundamental, for example, the convention that the government must resignfollowing defeat in a confidence motion in the House of Commons; theinterpretation of other conventions, for example the convention of individualministerial responsibility, although perhaps equally fundamental, may evolveover time and their interpretation may be more opaque; other conventions,for example, the convention that members of the royal family do not makespeeches which have party political implications, may be less fundamental andindicate what is merely inadvisable.34

In a paper submitted to the Australian Constitutional Convention, CherylSaunders and Ewart Smith also distinguished between conventions of differentkinds:

‘‘Some conventions might appropriately be included in a writtenconstitution, subject to enforcement in the courts; others might beincluded in the constitution as non-justiciable declarations of principle;others might be articulated outside the constitution by way of an informalagreement on the content of which is understood.’’ 35

33 See Vernon Bogdanor, Multi-Party Politics and the Constitution (Cambridge University Press, 1983).34 Andrew Heard in Canadian Constitutional Conventions: The Marriage of Law and Politics (Toronto:

Oxford University Press, 1991), p.141, draws a threefold distinction of this kind between conventions.35 ‘‘Identifying Conventions Associated with the Commonwealth Constitution’’, Australian

Constitutional Convention, Standing Committee ‘‘D’’, vol.2, 1982, p.1, cited in Heard, CanadianConstitutional Conventions: The Marriage of Law and Politics, p.151.



Unfortunately, they give no indication of which conventions belong to whichcategory.

What is clear is that only some conventions would be likely to prove bothsuitable for enactment and also justiciable. It would, admittedly, be possible toenact a convention but expressly exclude it from enforcement by action in thecourts; just as the Speaker’s certification of a money Bill for the purposes of theParliament Act is excluded from questioning in a court of law. While, therefore,it is not easy to separate what is political from what is constitutional/legal, it iscertainly possible to do so as the experience of other jurisdictions has shown.

At this point, however, a hostile critic might ask, if some at least of theconventions are to be non-justiciable, what is the precise point of enactingthem? The answer can only be that enactment might help to bring clarityinto what is often a confused area, and therefore offer some assistance in theresolution of constitutional crises. Nevertheless, the enactment of a constitutioncould well lead to a threefold division amongst conventional rules—rules whichare enacted and justiciable, rules which are enacted but non-justiciable, andrules which are not enacted, but which can nevertheless be authoritativelystated. In the case, however, of a rule that had been enacted but wasdeclared non-justiciable, one wonders what authority a court would have forpronouncing upon it, and what force such a judgment would have, since itwould have no legal consequences.

Moreover, one should not exaggerate the extent to which enacting aconvention would bring clarity. For the convention would have to be statedin very general terms and its interpretation might still remain a matter ofsome controversy. Enacting a constitution would not, moreover, removethe fundamental difficulty that deciding what is to count as a conventionis, as we have seen from the example of the Salisbury convention, by nomeans a purely intellectual or juristic activity, but an essentially political one.Where there is dispute about whether a particular practice amounts to aconvention, and about precisely what it prescribes, this will not be a purelyintellectual dispute any more than a dispute about the ‘‘real meaning’’ ofthe commerce clause or the equal protection clause in the United Statesconstitution is an intellectual one; nor will such a dispute be one over amatter of fact, over whether political actors do actually feel obliged; it willbe a dispute about whether they ought to feel obliged. It will be a disputeabout what terms such as ‘‘equal protection’’ ought to mean as much as oneabout what they do in fact mean. Similarly, a dispute about whether theSalisbury convention holds or not is more than a merely intellectual dispute,but in part a dispute about the proper locus of political power. There maytherefore be no wholly satisfactory way of determining who is ‘‘right’’ in thesedisputes, for the answer may depend upon the balance of political power,and upon political vicissitudes and the state of public opinion.36 It is for thisreason that John Griffith famously remarked that the British constitution is

36 See, on this point, Graeme C. Moodie, ‘‘The Monarch and the Selection of a Prime Minister: ARe-Examination of the Crisis of 1931’’ (1957) 5 Political Studies 18–19.


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‘‘no more and no less than what happens’’.37 Under our peculiar uncodifiedsystem, it will often be the case that where conventions are concerned,the limits of the constitution tend to coincide with the limits of politicalpower. Living as we do during a period of some constitutional ferment,it has become particularly difficult to predict the outcome of what is anessentially political struggle, and difficult, therefore, to discover a satisfactorysolution to the problem of enacting, for example, the powers of the Lords ina constitution.

Elaboration, ratification and amendment

The problem of determining how we are to decide which conventions shouldbe included and how they are to be formulated leads to an even morefundamental question. Who is to have the authority to decide such matters?A constitutional document, it might be suggested, cannot be drawn up in thesame way as an ordinary legislative measure. Yet the report of the AustralianConstitutional Convention,38 valuable as it is, raises the question of whatauthority such a statement by a committee, however eminent, should enjoy.In order for it to carry legitimacy, presumably all-party representation ona constitutional assembly would be required, as was the case in Australia.Suppose, however, that there was not unanimous agreement on what theconvention is, as with, for example, the Salisbury convention. Would thatprevent it from being regarded as a convention? Would the representatives ofone political party, however small, be able to exercise a veto power—or couldthe issue be decided by majority or qualified majority vote? Some conventionsin the Australian report were in fact decided by majority vote. Moreover, howwould conventions come to be changed? The answers are by no means clear.It would seem that the Australian Convention may have succeeded in creatinga rule of recognition for conventions, but not a rule of change. There wouldbe some danger of creating ‘‘an almost unique degree of inflexibility limited toindeterminacy and ineffectiveness, born of non-justiciability’’.39

An assembly of the ‘‘great and the good’’ is by no means the only institutionalmethod by which proposals for a constitution might be drawn up. In Britain,one proposal that is currently being considered is that a directly electedConvention be established. The Liberal Democrats recently proposed that halfof the membership of such a Convention should be chosen by random lot.40

Others have suggested that it should be wholly elected. The danger withproposals of this kind, of course, is that, since few people find constitutionalissues a matter of pressing concern, turnout for the election would be low, andthe Convention would, in consequence, lack legitimacy.

37 John Griffith, ‘‘The Political Constitution’’ (1979) 42 M.L.R. 1 at p.19.38 See fn.35 above.39 Sampford, (1987) 7 O.J.L.S. 369 at p.403. The reference to the rule of recognition is of course

derived from H.L.A. Hart, The Concept of Law (Clarendon Press, 1961).40 Sir Menzies Campbell, ‘‘A Rescue Plan for Politics’’, Guardian, September 6, 2007.



An alternative suggestion is a representative but non-elected constitutionalConvention analogous to that which met in Scotland from 1989 to 1995.41 Thiscomprised representatives of the Labour and Liberal Democrat parties, togetherwith representatives of some of the minor parties, and of the main institutionsof Scottish civil society—for example, the churches and the trade unions. TheConvention, however, was established to consider just one, fairly specific,issue, devolution; and it was composed only of supporters of devolution, sincethe Conservatives and the SNP refused to take part. Moreover, Scotland is amore cohesive civic society than England, and it may be easier to achieve aconsensus there, particularly on matters which affect issues involving Scottishnationality. A constitutional Convention in the country as a whole would haveto deal with a much wider range of issues, and it would be much more difficultthan it was in Scotland to secure accurate representation of the various streamsof opinion. If all parties agreed to be represented on it, the convention mightjust replicate the party dogfight at Westminster, and contribute to furtheralienation. If any of the opposition parties refused to be represented on it, ashappened in Scotland, the convention might be seen as merely an instrumentof the government in power.

It may be suggested that a popular convention, however chosen, would bethe wrong instrument to present proposals for an enacted constitution, sincefew members of the public have formulated precise proposals on this topic.Guidance would perhaps be needed, and, for this, involvement of ‘‘the greatand the good’’ would seem inescapable. One way to achieve this while retainingsome popular input would be to initiate a consultation and learning exerciseby means of a Royal Commission. Members of the Commission would beexperts nominated by the government, but no doubt the government wouldseek the approval of the main opposition parties for its nominees.

The great advantage of a Commission is precisely that it would be a learningexercise. It would take written and oral evidence in different parts of theUnited Kingdom, and its oral evidence sessions would no doubt be televised,and would receive considerable publicity in the local as well as the nationalmedia. That would raise the profile of issues connected with democracy andmight encourage people to think about them. Between 1969 and 1973, theRoyal (Kilbrandon) Commission on the Constitution,42 which dealt primarilywith devolution, held evidence sessions in different parts of the country, andthis served to raise the profile of the devolution issue very considerably.

Once a constitution had been drawn up, a procedure would need to befound for ratification. The preamble to the US Constitution begins ‘‘We thepeople’’, the implication being that the people of the United States have giventhemselves a constitution. The people, however, were consulted neither in thechoice of Founding Fathers nor in the ratification of the constitution whichwas done by elected representatives. Similarly, the preamble to the German

41 See Vernon Bogdanor, Devolution in the United Kingdom (Oxford University Press, 1999),pp.196–198 and Kenyon Wright, The People Say Yes: The Making of Scotland’s Parliament (ArgyllPublishing, 1997). Rev. Kenyon Wright was Chair of the Convention.

42 Cmnd.5460, 1973.


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constitution of 1949 declares that ‘‘The German people have adopted, byvirtue of their constituent power, this Basic Law’’, though that too was ratifiedby elected representatives rather than directly by the people. In some countries,however, France for example, the constitution has been directly ratified by thepeople.

The referendum is now an accepted procedure in Britain, although so faronly one nation-wide referendum has been held—on whether Britain shouldremain in the European Communities—in 1975. Nevertheless, a number ofother referendums have been promised, and it is generally accepted that joiningthe Eurozone and altering the electoral system for elections to the House ofCommons should be dependent upon approval in referendums. Other mattersare more controversial. At the time of writing, for example, there is somedispute as to whether the proposed European Treaty should be put to thepeople in a referendum. There is, therefore, no general agreement on theprecise role of the referendum. Nevertheless, it would be natural to suggestthat a constitution be put to the people for ratification. Were that to occur,then Parliament would have signalled in the clearest possible way that in futureit would no longer be sovereign, for it would then be bound by a constitutionwhich had been enacted not only by itself but also by the people, from whomit would derive both its powers and also the limitations upon its powers.43

Should amendment of the constitution also be subject to referendum, orshould Parliament alone be able to amend it; and, if Parliament has the solepower of amendment, should it be able to amend the constitution in thesame manner as it passes other legislation, or should some special procedure berequired, such as explicit repeal or a qualified majority. In the exercise whichwe conducted with students in the autumn of 2006, they were required toconsider the method of amendment most appropriate to the constitution as itnow is, not as they might like it to be. They produced three options. Thefirst was that the constitution could, as is the case with most other legislation,be impliedly amended, and that a later statute would, as it were, ‘‘trump’’ theconstitution, which would therefore be treated as if it was just an ordinarystatute. The second was that the constitution could only be amended explicitlyas with the European Communities Act and the Human Rights Act. The thirdwas that the constitution should be entrenched and could only be amended bya qualified majority in Parliament and a referendum. The qualified majoritywould require assent from at least two-thirds of the members of each House,with at least 50 per cent of the members of each House being present. Aftersome discussion, the students were asked to decide, by vote, which optionthey believed was most in accordance with current practice. They decided by anarrow margin on the second alternative, express repeal. Thus any amendmentto the constitution would have to be sought expressly through a ConstitutionalAmendment Bill. Such a Bill, however, would then be subject to the normallegislative procedures. Another option might have been to have given theHouse of Lords an absolute veto over such a Bill similar to that which the

43 Compare O. Hood Phillips, Reform of the Constitution (Chatto and Windus/Charles Knight, 1970),p.156.



Lords enjoy over a Bill prolonging the life of a parliament, for this arguablyprovides a precedent for other legislation enjoying a special constitutionalstatus.

The students also decided that there should be three further restrictions onthe sovereignty of Parliament. The first was that ‘‘the courts do not give effectto any rule of law which is incompatible with directly effective European law’’.The second was that a referendum would be required before the establishmentof a directly elected devolved body enjoying legislative or executive power;the third was that any constitutional amendment seeking to amend or repealthis particular provision would itself require a referendum before coming intoeffect. The first two restrictions reflect, it may be argued, current arrangements,while the third is needed in order to give teeth to the second restriction.

Of course, if the principle of the sovereignty of Parliament is taken seriously,there seems little point in enacting a constitution. For, if Parliament is sovereign,the British constitution can be summarised in just eight words—what theQueen in Parliament enacts is law. Yet the prime purpose of enacting aconstitution is to provide for some form of ‘‘higher’’ law, provisions whichwould be more difficult to alter than those of the ordinary law. A constitution,therefore, would register and give legal effect to the proposition that Parliamenthas abdicated its sovereignty.44 In The Law of the Constitution, Dicey dismissesthe:

‘‘. . . strange dogma . . . that a sovereign power, such as the Parliament ofthe United Kingdom, can never by its own act divest itself of sovereignty.. . . To argue or imply that because sovereignty is not limitable (whichis true), it cannot be surrendered (which is palpably untrue), involves theconfusion of two distinct ideas. It is like arguing that because no man can,while he lives, give up, do what he will, his freedom of volition, so noman can commit suicide.’’

The sovereign, Dicey suggests, can divest itself of authority by permanentlytransferring part of its authority to another person or body. If, for example,the 1706 Acts of Union, passed by the English and Scottish Parliaments, hadkept alive the Parliaments of England and Scotland solely for the purposeof modifying when necessary these Acts, and had conferred upon the newParliament of Great Britain, created by the Acts, authority to pass any lawwhatever except one modifying, infringing or repealing the Acts of Union,then the Acts would have been fundamental law unchallengeable legally bythe new Parliament of Great Britain.45

Perhaps interest in enacting a constitution has arisen precisely because it hascome to be believed by some that Parliament may no longer be sovereign;or, to put the point another way, parliamentary sovereignty no longer seems

44 We owe this point to Professor Anthony Bradley. But he is not responsible for the use that wehave made of it.

45 Dicey, Law of the Constitution, pp.65–66. We have modified Dicey’s wording slightly, since Diceywrites of the Act of Union, as if the Union had been secured merely by an Act of the English Parliament,rather than requiring the assent of both the English and the Scottish Parliaments.


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to entail that power ‘‘over all persons, matters and things’’, which s.75 of theGovernment of Ireland Act 1920—a declaratory clause—claimed (wrongly,one may suspect) Westminster would continue to enjoy over Northern Irelandfollowing the establishment of a Home Rule parliament in the province.46

But the prime reason why it is sometimes suggested that Parliament is nolonger sovereign is of course the European Communities Act 1972. That Act,according to one authority:

‘‘. . . allotted, or purported to allot, a special status to community lawwithin the United Kingdom, and more especially since the decision inthe Factortame case, in which an Act of Parliament was for the first time‘disapplied’ as being in conflict with Community law, some differenceof opinion has existed as to whether the British judiciary has acquiescedin a legal revolution, abandoning a crucial element in the doctrine ofparliamentary sovereignty.’’47

The Human Rights Act 1998 and the legislation providing for devolution inthe non-English parts of the United Kingdom do not, by contrast with theEuropean Communities Act, offer any such formal challenge to the principleof parliamentary sovereignty. Nevertheless, while preserving parliamentarysovereignty in form, it may be argued that they have the effect of limiting itsscope in practice. What cannot be doubted is that there is far less confidencein the applicability and relevance of the principle of parliamentary sovereigntyat the present time than when Dicey wrote, and a debate has begun as towhether there should be a British Bill of Rights.48 It is because parliamentarysovereignty is no longer an unchallenged doctrine of the constitution that acodified constitution has become possible; and it is because there is scepticismconcerning the value of the doctrine that voices have been heard callingfor an enacted constitution. An enacted constitution would, however, haveto confront at the outset the problem of whether or not the EuropeanCommunities Act has limited the sovereignty of Parliament, and whether thepractical limitation of sovereignty by the Human Rights Act and the devolutionlegislation should be registered in the constitution. An enacted constitutionwould have to confront squarely the doctrine of the sovereignty of Parliament.

Conclusion

We have asked whether the enactment of a British constitution is feasible.Our answer is that there is no reason why it should not be feasible, noreason why, almost alone amongst democracies, Britain should be unable toenact a constitution. The problems involved in this enterprise are, however,formidable. Some of the problems are similar to those that have been faced and

46 See Bogdanor, Devolution in the United Kingdom, Ch.3.47 Geoffrey Marshall, ‘‘The Constitution: Theory and Interpretation’’ in Vernon Bogdanor (ed.),

The Constitution in the Twentieth Century (Oxford University Press, 2003), p.50; and references cited.48 See Francesca Klug, ‘‘A Bill of Rights: Do We Need One or Do We Already Have One?’’ [2007]

P.L. 701–719. See also the ‘‘Justice report, A British Bill of Rights: Informing the Debate’’, 2007.



successfully resolved by other countries seeking to enact a constitution; others,however, are more specific to Britain, in particular, the problems of enacting aconstitution that has long been uncodified, and of confronting the doctrine ofthe sovereignty of Parliament. What cannot be doubted is that the enactment ofa constitution is, to some extent at least, a normative and a political exercise aswell as an intellectual one; and that the ‘‘is’’ cannot be wholly separated from the‘‘ought’’. The selection of what is to go into the constitution inevitably involves,so we have argued, normative choices. Perhaps, however, it is time that webegan to make these choices. For, we cannot be said to know what our constitu-tion actually is, much less to understand it, until we have attempted to enact it.


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Public-Private Intersection:Comparing Fiduciary ConflictDoctrine and Bias

Matthew Conaglen*

University Lecturer in Law, University of Cambridge

Bias; Conflict of interest; Fiduciary duty; Judicial review; Jurisprudence;Remedies

Thirty years ago, Paul Finn observed that:

‘‘Perhaps not surprisingly, given the close resemblance which the fiduciaryofficer bears to the public official, [fiduciary doctrine’s] system of reviewreflects in a very large measure that described by the late Professor DeSmith in Judicial Review of Administrative Action.’’1

More recently, Dawn Oliver has argued that various parallels or analogies canbe drawn between the judicial supervision of non-statutory discretions, underprivate law doctrines, and that of statutory (and other public) discretions, underadministrative law doctrines. She argues that rules and duties across a widerange of legal categories ‘‘form part of a legal framework for the control ofpower which is not by any means confined to public law’’.2 Courts, too,have drawn such comparisons, explicitly recognising a connection betweenthe doctrines which allow for review of the exercise of public power and thosegoverning the review of privately held discretionary powers. In Equitable Lifev Hyman, for example, Lord Woolf M.R. noted ‘‘marked similarities betweenthe two discretionary situations’’3 and many other cases, both in England4 and

* Fellow in Law, Trinity Hall, Cambridge. I am grateful, with the normal disclaimers, to ColinCampbell, Angus Johnston, Richard Nolan, Mike Taggart, Rebecca Williams and an anonymousreferee for helpful comments on a draft of this article.

1 P.D. Finn, Fiduciary Obligations (Sydney: Law Book Co, 1977), para.6. See too K.W. Wedderburn,‘‘Trust, Corporation and the Worker’’ (1985) 23 Osgoode Hall Law Journal 203 at p.221.

2 D. Oliver, ‘‘Review of (Non-Statutory) Discretions’’ in C.F. Forsyth, ed., Judicial Review andthe Constitution (Oxford: Hart, 2000) p.307, at p.312; see also D. Oliver, Common Values and thePublic-Private Divide (London: Butterworths, 1999), p.194.

3 Equitable Life Assurance Society v Hyman [2002] 1 A.C. 408 at [17].4 Byng v London Life Association Ltd [1990] Ch. 170 at 189; Harris v Lord Shuttleworth [1994] I.C.R.

991 at 999; Wild v Smith [1996] P.L.R. 275 at [23]–[24]; Scott v National Trust for Places of Historic Interestor National Beauty [1998] 2 All E.R. 705 at 715–716, 718; Edge v Pensions Ombudsman [2000] Ch. 602


Public-Private Intersection: Comparing Fiduciary Conflict Doctrine and Bias 59

elsewhere,5 contain similar dicta comparing the public and private law regimesthat control the exercise of discretionary powers.

To date, these observations have been made at a high level of abstraction.Mindful of this, some judges have warned of the need for caution with theanalogy. As Lord Woolf put it, one ‘‘must be cautious and not draw falseanalogies’’.6 In Abacus Trust v Barr, Lightman J. mentioned the analogy butnoted that there are ‘‘critical differences between public, or administrative, lawand private law proceedings’’.7 Some academic commentators have arguedeven more forcefully against the analogy. David Hayton, in particular, hasargued that the analogy can be harmful, in that it has the potential to drawtrust law in directions which are undesirable.8

The analogy is an expansive project, seeking to identify similarities betweenprivate law and public law modalities for the control of discretionary power.One can pursue that agenda on several distinct but inter-related levels ofdiscourse. First, one can consider a large number of doctrines at a very abstractlevel and seek to identify similarities and differences between those doctrinesin general terms. Secondly, one can take individual doctrines from public lawand private law which appear similar in general terms, and conduct a far moredetailed analysis to determine the extent to which those apparent similarities(at the abstract level) are in fact present in the detail of the doctrines. Thesetwo levels of discourse are, of course, inter-related. Others have already madea significant contribution to the debate regarding the analogy at the abstractlevel of discourse. This article seeks to further discussion of the analogy bypursuing the second, more detailed, level of discourse.

Within the confines of an article such as this, it is impossible to do justiceto more than one area of comparison. The area that will be addressed is thecomparison indicated in Dawn Oliver’s observation that ‘‘the rule that a trusteemust not benefit from the trust provides a parallel with the rule against biasin judicial review’’.9 Her writing did not investigate in any further detail thatcomparison between bias law and fiduciary conflict doctrine. This article offersa detailed exploration into whether these two apparently similar doctrines are

at 628–630; Equitable Life Assurance Society v Hyman [2002] 1 A.C. 408 at 460. See also Lord Walker’sextra-curial comments in R. Walker, ‘‘The Limits of the Principle in Re Hastings Bass’’ [2000] P.C.B.226 at p.227.

5 Craddock v Crowhen (1995) 1 N.Z.S.C. 40,331, 40,337; Wrightson Ltd v Fletcher Challenge NomineesLtd [1996] P.L.R. 317 at [102]; Minister for Immigration v Esehtu (1999) 197 C.L.R. 611 at 649; HotHoldings Pty Ltd v Creasy [2002] HCA 51, (2002) 210 C.L.R. 438 at [135]; Wong v Burt [2003] 3N.Z.L.R. 526 at [18] and [27] (reversed on appeal for unrelated reasons: [2005] 1 N.Z.L.R. 91);Collinge v Kyd [2005] 1 N.Z.L.R. 847 at [55]–[56], [59]; Szfde v Minister for Immigration and Citizenship[2007] H.C.A. 35 at [12].

6 Hyman [2002] 1 A.C. 408 at [17].7 Abacus Trust Co (Isle of Man) v Barr [2003] EWHC 114 (Ch); [2003] Ch. 409 at [29]–[30]; see also

Scott v National Trust [1998] 2 All E.R. 705 at 718; R. v Charity Commissioners for England and Wales Exp. Baldwin [2001] W.T.L.R. 137 at 150;Gailey v Gordon [2003] 2 N.Z.L.R. 192 at [88]–[89].

8 D.J. Hayton and C. Mitchell, Hayton & Marshall’s Commentary and Cases on the Law of Trusts andEquitable Remedies, 12th edn (London: Thomson, 2005), paras 9-242 to 9-246.

9 Oliver, ‘‘Review of (Non-Statutory) Discretions’’, C.F. Forsyth, ed., Judicial Review and theConstitution (Oxford: Hart, 2000) p.307 at p.310 (see also p.313); Oliver, Common Values, (1999), atpp.193 and 196.


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in fact comparable in terms of the way they reach results and the purposes theyserve. The relevance of this endeavour is that if essential differences betweenthe doctrines are identified in these respects, then any attempt to analogise fromone to the other would be radically misconceived. On the other hand, if thetwo doctrines are found to be comparable in doctrinal terms, then it would notbe misconceived to attempt to draw analogies between them. That conclusioncan only be justified after detailed consideration of the two doctrines, and itis that conclusion which this article seeks to defend. It is perhaps important toemphasise that it is not being suggested that this means such analogies should bedrawn. Such an argument ought only to be advanced after further considerationof the broader contexts in which each doctrine operates,10 and of whetherthose contexts militate in favour of, or against, analogies being drawn. In par-ticular, more empirical consideration of the types of interests and relationshipswhich trigger application of each doctrine would be required in order to beconfident that the doctrinal similarities were more than merely coincidentaland that the development of one or other doctrine by analogy would not losesight of the context within which that doctrine operates. Similarly, it would beimportant to identify, if possible, why public officials and fiduciaries are beingregulated in a comparable manner. Developing a contextual comparison ofthe doctrines requires a detailed empirical analysis of hundreds of cases, giventhe courts consider it ‘‘dangerous and futile to define or list the factors whichmay or may not give rise to a real danger of bias. Everything will depend onthe facts’’,11 just as it does in fiduciary conflict cases.12 Such a study wouldbe highly beneficial but is far beyond the scope of this article. Furthermore,detailed consideration of several (rather than merely two) doctrines governingpublic officials and fiduciaries would be appropriate in order to understand ona broader plane the similarities and differences between the public and privatelaw regimes. These extended studies are not possible within the confines ofthis article. Its purpose is the more modest one of arguing that such furtherinvestigation is worthwhile and not radically misconceived.

The analysis offered is, therefore, relevant to the theoretical discourse regard-ing the boundary between public and private law. However, it also has practicalrelevance. In particular, rather than merely noting similarities and differencesbetween public and private law as they currently exist, which appears largelyto have been Dawn Oliver’s concern,13 some have sought to use the suggestedanalogy between the two forms of law as a justification for developing one or

10 As to the importance of context, see T. Daintith, ‘‘Contractual Discretion and AdministrativeDiscretion: A Unified Analysis’’ (2005) 68 M.L.R. 554 at pp.556–557, 565, 586, 589, 593; TownInvestments Ltd v Department of the Environment [1978] A.C. 359 at 397; Kinloch v Secretary of State forIndia in Council (1880) L.R. 15 Ch.D. 1, 8, 9, 13; Tito v Waddell (No.2) [1977] Ch. 106 at 211, 216; R.v Secretary of State for the Environment Ex p. Kirkstall Valley Campaign Ltd [1996] 3 All E.R. 304 at 320,321; Bathurst City Council v PWC Properties Pty Ltd [1998] H.C.A. 59; (1998) 195 C.L.R. 566 at [47],[63].

11 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] Q.B. 451 at [25].12 Cook v Evatt (No.2) [1992] 1 N.Z.L.R. 676 at 685; Foster Bryant Surveying Ltd v Bryant [2007]

EWCA Civ 200, [2007] Bus. L.R. 1565 at [76].13 Oliver, Common Values, (1999), at p.194; Oliver, ‘‘Review of (Non-Statutory) Discretions’’, in

C.F. Forsyth, ed., Judicial Review and the Constitution (2000), p.307 at p.312.



other body of doctrine. For example, Robert Walker J.’s suggestion in Scottv National Trust ‘‘that legitimate expectation may have some part to play intrust law as well as in judicial review cases’’14 would involve an extension oftrust law principles on the basis of an analogy with public law. And in Collingev Kyd, Paterson J. drew analogies with bias law when determining whethera trustee’s conflicting interest was sufficiently material to invoke the fiduciaryconflict principle.15 Analogical reasoning proceeds by reference to similarityand difference,16 and it is, of course, difficult to determine which similaritiesor differences are relevant or significant.17 However, ‘‘analogical reasoningfocuses on particulars’’.18 If analogies between doctrines are to be relied uponto develop the law, or even simply to support a particular application of onedoctrine on the basis that the application coheres with the other doctrine, thoseanalogies ought only to be pursued following rigorous and detailed consider-ation of the doctrines involved, in order to determine whether the doctrinesare sufficiently similar to justify reliance on the analogy, and consideration ofthe question whether the context within which each doctrine operates eithersupports or weakens the case for the analogy. This article begins the process ofproviding that detailed doctrinal analysis.

Basis for the analogy

Before proceeding to analyse in detail the extent to which fiduciary conflictdoctrine and bias law are, or are not, analogous, it is worthwhile first settingout clearly what each doctrine entails. Bias law disqualifies an arbiter frombeing involved in proceedings in which he or she is a party: nemo iudex insua causa.19 This prohibition ‘‘is not to be confined to a cause in which [thedecision-maker] is a party, but applies to a cause in which he has an interest’’,20

and recent cases have made clear that this covers financial interests in theoutcome, but also any situation where the decision-maker can be said to havean interest in the outcome of the proceedings.21 Furthermore, even where thedecision-maker does not have an interest in the outcome of the proceedings,bias law still intervenes if there is an appearance of bias: ‘‘The question iswhether the fair-minded and informed observer, having considered the facts,

14 Scott v National Trust, [1998] 2 All E.R. 705 at 718.15 Collinge [2005] 1 N.Z.L.R. 847 at [55], [59].16 E.H. Levi, An Introduction to Legal Reasoning (Chicago: University of Chicago Press, 1949), pp.1–2;

W. Lucy, Understanding and Explaining Adjudication (Oxford: OUP, 1999), p.376; M.D.A. Freeman,Lloyd’s Introduction to Jurisprudence, 7th edn (London: Sweet & Maxwell, 2001), p.1409.

17 C. Sunstein, ‘‘Analogical Reasoning’’ (1993) 106 Harvard Law Review 741 at pp.745–746; J.White, ‘‘Analogical Reasoning’’ in D. Patterson, ed., A Companion to Philosophy of Law and Legal Theory(Cambridge: Blackwell, 1996), p.583, at pp.584–586.

18 Sunstein, ‘‘Analogical Reasoning’’ (1993) 106 Harvard Law Review 741, p.746.19 P. Cane, Administrative Law, 4th edn (Oxford: OUP, 2004), p.133; R. v Gough [1993] A.C. 646

at 661; H.W.R. Wade and C.F. Forsyth, Administrative Law, 9th edn (Oxford: OUP, 2004), p.450.20 Dimes v Grand Junction Canal (1852) 3 H.L.C. 759 at 793; R. v Rand (1866) L.R. 1 Q.B. 230 at

232.21 R. v Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet Ugarte (No.2) [2000] 1 A.C. 119 at

132–133, 135, 137; Roylance v General Medical Council (No.2) [2000] 1 A.C. 311 at 318, PC.


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would conclude that there was a real possibility that the tribunal was biased’’.22

The fiduciary conflict doctrine holds that:

‘‘[A] person in a fiduciary position, . . . is not, unless otherwise expresslyprovided, entitled to make a profit; he is not allowed to put himself in aposition where his interest and his duty conflict.’’23

More recent decisions also make clear that a fiduciary acts in breach of thefiduciary conflict doctrine where he or she, ‘‘acts for two principals withpotentially conflicting interests without the informed consent of both’’.24

At a superficial level, it is relatively easy to illustrate a connection betweenthese two doctrines. First, the cases concerning fiduciary conflict doctrinecontain plentiful references to the problem with such conflicts being thatthe fiduciary is prevented from bringing an ‘‘independent’’ and ‘‘impartial’’mind to the performance of his or her fiduciary office. For example, inGuinness v Saunders, a company director was a member of a committee whichauthorised the payment of a success fee to the director in respect of a takeoverbid for another company. The authorisation was invalid, as the company’sarticles enabled only the board of directors (and not a mere committee) toauthorise such payments. The House of Lords rejected all of the director’sother attempts to justify the payment as the director should never have beeninvolved in making a decision about his own remuneration because by doingso he ‘‘debarred himself from giving impartial and independent advice’’25 tothe company. Similarly, in McPherson v Watt, Lord Blackburn referred to theright of a client to receive ‘‘disinterested advice’’ from his attorney as the reasonwhy an attorney cannot purchase his client’s property.26 In Andrews v Ramsay,Lord Alverstone C.J. quoted a passage from Story on Agency concerning theimpermissibility of an agent acting so as to bind his principal where the agent hasan adverse personal interest, as a principal expects from his agent, ‘‘disinterested

22 Porter v Magill [2001] UKHL 67; [2002] 2 A.C. 357 at [103]; see also Lawal v Northern Spirit Ltd[2003] UKHL 35; [2004] 1 All E.R. 187 at [2]; R. (on the application of Al-Hasan) v Secretary of State forthe Home Department [2005] UKHL 13; [2005] 1 W.L.R. 688 at [30]; Gillies v Secretary of State for Workand Pensions [2006] UKHL 2; [2006] 1 W.L.R. 781 at [3], [38]; R. (on the application of Paul) v DeputyCoroner of the Queen’s Household [2007] EWHC 408 (Admin); [2007] 2 All E.R. 509 at [65]. This isa ‘‘modest adjustment’’ of the test proposed by Lord Goff of Chieveley inGough, [1993] A.C. 646 at668, which in turn was based upon Blackburn J.’s observations in R. v Rand (1866) L.R. 1 Q.B. 230at 232–233. Arguably, lower courts may have tended back towards Gough in their application of thebias rule since Porter v Magill (S. Attrill, ‘‘Who is the ‘Fair-Minded and Informed Observer’? Bias afterMagill’’ [2003] C.L.J. 279 at pp.280–281; M. Taggart, ‘‘Administrative Law’’ [2003] New Zealand LawReview 99 at p.100; cf. Davidson v Scottish Ministers [2004] UKHL 34; (2005) 1 S.C. (HL) 7 at [8], [56]),but this does not affect the analysis offered here—the importance of the adjustment made in Porter vMagill was not to alter the threshold for disqualifying bias but rather to emphasise that ‘‘public perceptionof the possibility of unconscious bias is the key’’: Lawal v Northern Spirit, above, at [14] (emphasisadded); see also Webb v R. (1994) 181 C.L.R. 41 at 51–52; P.P. Craig, Administrative Law, 5th edn(London: Thomson, 2003), p.462; Taggart, [2003] New Zealand Law Review 99 at p.100.

23 Bray v Ford [1896] A.C. 44 at 51.24 Bristol & West Building Society v Mothew [1998] Ch. 1 at 18; see also Beach Petroleum NL v Abbott

Tout Russell Kennedy [1999] NSWCA 408; (1999) 48 N.S.W.L.R. 1 at [196]–[202].25 Guinness Plc v Saunders [1990] 2 A.C. 663 at 695 (see also at 694).26 McPherson v Watt (1877) 3 App. Cas. 254 at 272 (see also at 275 and 276).



skill, diligence, and zeal [and] impartiality’’.27 And in Cook v Evatt, FisherJ. referred to the task of investment advisers, who conceded that they owedfiduciary duties to their client,28 as being to find a property for the plaintiff‘‘in an impartial manner’’.29 The connection between bias law and thesedescriptions of fiduciary conflict doctrine is apparent when one bears in mindthat bias law is underpinned by the concepts of impartiality and independence:‘‘Bias, whether actual or apprehended, connotes the absence of impartiality.’’30

Indeed, the connection is even more clearly apparent in the several fiduciaryconflicts cases which refer directly to ‘‘bias’’ as a motivating concern underlyingfiduciary conflict doctrine. For example, in Parker v McKenna, Lord CairnsL.C. criticised directors of a company who bought newly issued shares in thecompany from the underwriter of the issue on the basis that their purchase of theshares then made it ‘‘utterly impossible for [them] to exercise an independentand unbiassed judgment’’31 with respect to the relaxation of the terms onwhich the shares were issued. In Guinness v Saunders, which has already beenmentioned, Lord Templeman also referred to the director’s conduct as bringingabout a situation where his advice to the company was ‘‘suspect and biased’’.32

In Movitex v Bulfield, Vinelott J. described the fiduciary conflict principle asentitling a company to the benefit of the ‘‘unbiased judgment’’33 of every oneof its directors. And, in Pilmer v Duke Group, Kirby J.’s dissenting judgmentreferred to the plaintiff company’s dependence on its advisers’ ‘‘independentjudgment’’ and its vulnerability to the advisers’ ‘‘biased opinion’’ as relevantconsiderations in determining whether the fiduciary conflict doctrine wasapplicable.34

Secondly, comments made in the context of bias law indicate that conflictinginterests are part of its motivating concern. For example, in Ebner v OfficialTrustee, a majority of the High Court of Australia referred to ‘‘financialconflicts of interest’’35 and ‘‘economic conflicts of interest’’36 as being ofparticular significance in identifying impermissible bias.

Thirdly, the connection between fiduciary conflict doctrine and bias law isreinforced by Megarry J.’s decision in Spector v Ageda.37 Discussing the problemswhich arise where a fiduciary, such as a solicitor, is personally involved in atransaction with his client, Megarry J. observed that:

27 Andrews v Ramsay & Co [1903] 2 K.B. 635 at 637.28 Cook v Evatt (No.2) [1992] 1 N.Z.L.R. 676 at 684.29 Cook v Evatt (No.2) [1992] 1 N.Z.L.R. 676 at 688 and 689.30 Ebner v Official Trustee in Bankruptcy [2000] H.C.A. 63; (2000) 205 C.L.R. 337 at [23] (see also at

[60], [145]–[146]); Porter [2001] UKHL 67; [2002] 2 A.C. 357 at [88]; R. (on the application of AlconburyDevelopments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23;[2003] 2 A.C. 295 at [42]; Davidson v Scottish Ministers, [2004] UKHL 34 at [47]; D.J. Galligan, DueProcess and Fair Procedures (Oxford: OUP, 1996), pp.438–440.

31 Parker v McKenna (1874) L.R. 10 Ch.App. 96 at 118.32 Guinness v Saunders [1990] 2 A.C. 663 at 694–695.33 Movitex Ltd v Bulfield [1988] B.C.L.C. 104 at 118.34 Pilmer v Duke Group Ltd (In Liquidation) [2001] HCA 31; (2001) 207 C.L.R. 165 at [135].35 Ebner [2000] H.C.A. 63; (2000) 205 C.L.R. 337 at [34].36 Ebner [2000] H.C.A. 63; (2000) 205 C.L.R. 337 at [58].37 [1973] Ch. 30.


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‘‘. . . [T]he solicitor must be remarkable indeed if he can feel assuredof holding the scales evenly between himself and his client. Even if infact he can and does, to demonstrate to conviction that he has done sowill usually be beyond possibility in a case where anything to his client’sdetriment has occurred. Not only must his duty be discharged, but it mustmanifestly and undoubtedly be seen to have been discharged.’’38

The notion that fiduciary conflict doctrine is designed to ensure that thefiduciary’s duty to his client is not only discharged but is manifestly andundoubtedly seen to have been discharged is distinctly reminiscent of LordHewart C.J.’s famous dictum regarding bias law in the Sussex Justices case, that:

‘‘[I]t is not merely of some importance but is of fundamental importancethat justice should not only be done, but should manifestly andundoubtedly be seen to be done.’’39

The similarity of the language involved in each of these two quotations makesit hard to believe that Megarry J. did not have Lord Hewart’s words in mindwhen writing his judgment in Spector v Ageda. It is now clear that, while theintegrity of the principle mentioned by Lord Hewart in Sussex Justices is to befully maintained, it is not to be treated as a test per se for determining whena bias objection has been made out.40 However, its importance for presentpurposes lies in the evidence it provides of apparent cross-fertilisation betweenthe private law doctrine concerning fiduciary conflicts and the public lawdoctrine concerning bias. In other words, all of the dicta referred to in thissection of the article suggest some degree of analogy between bias law andfiduciary conflict doctrine.

Evaluating the analogy

However, if the analogy between fiduciary conflict doctrine and bias law isto be understood properly, and to be assessed, one cannot simply halt theanalysis at the point where some degree of similarity or cross-fertilisationappears. Lord Woolf41 and Dawn Oliver42 both opine that the similaritiesbetween the doctrines are explained by the involvement of Lord GreeneM.R., a distinguished Chancery lawyer, in the development of administrativelaw, particularly in his decision in Wednesbury.43 While Lord Greene’spedigree as a Chancery lawyer is undoubted,44 it is not clear that Lord

38 [1973] Ch. 30 at 47.39 R. v Sussex Justices Ex p. McCarthy [1924] 1 K.B. 256 at 259.40 R. v Camborne Justices Ex p. Pearce [1955] 1 Q.B. 41 at 51–52; Gough, [1993] A.C. 646 at 663–664,

673; H. Woolf, J. Jowell and A.P. Le Sueur, de Smith, Woolf & Jowell’s Principles of Judicial Review(London, Thomson, 1999), para.11-006.

41 Hyman [2002] 1 A.C. 408 at [20].42 Oliver, Common Values, (1999) at p.192; Oliver, ‘‘Review of (Non-Statutory) Discretions’’ in

C.F. Forsyth, ed., Judicial Review and the Constitution (2000) at p.311.43 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 K.B. 223.44 Wilfred Greene had an extensive Chancery practice from 1908 until 1935, interrupted only by

military service during the Great War between 1914 and 1918. He took Silk in 1922 and was appointed



Greene’s involvement provides the soundest historical explanation for theapparent similarities between the two doctrines. It is clear that each of thetwo doctrines under consideration dates back much farther than that. It ispossible that some connection might be found in the fact that fiduciaryconflict doctrine began to solidify into its modern form around the timeof Lord Eldon’s period as Lord Chancellor, which was also the period inwhich the courts began to give effect to the notion of a public trust,45

also under Lord Eldon’s leadership. Alternatively, an explanation might befound even earlier in the connection between Lord King L.C.’s decisionin Keech v Sandford,46 preventing a trustee from taking a renewal of thetrust’s lease for himself, and an apparent concern on Lord King’s part toprevent the taking of profit from public office, although that too remainsunclear.47

Without any clear historical explanation for the apparent analogy, it isnecessary to go further and to evaluate in detail the degree to which theanalogy holds. That is the purpose of this section of the article. It proceedsby considering three areas in which similarities or differences might be foundbetween the two doctrines: first, in the methodologies adopted; secondly,in the underlying rationale of each doctrine; and finally, in the remedialconsiderations applicable in the context of each doctrine. These three topicsare undoubtedly interconnected, as one would expect: it would be odd ifa doctrine’s methodologies and remedies were not related to its underlyingrationale. Nonetheless, it is helpful to separate out discussion of the threetopics in order to obtain a sharper understanding of the precise similarities anddifferences between the two doctrines.

MethodologiesThere are a number of areas in which the methodologies applied withinfiduciary conflict doctrine and within bias law exhibit considerable similarities.First, both doctrines are acutely aware of the difficulties of proving the effectsof bias and conflicts respectively, and their methodologies respond to thosedifficulties. In the bias context, for example, it is unnecessary to prove actualbias on the part of the decision-maker,48 and cases involving its proof areexceedingly rare:

‘‘. . . [T]he concept [of bias] requires not only that the tribunal must betruly independent and free from actual bias, proof of which is likely tobe very difficult, but also that it must not appear in the objective sense tolack these essential qualities.’’49

directly to the Court of Appeal in 1935. He was made Master of the Rolls in 1937, a baron in 1941(remaining Master of the Rolls) and a Lord of Appeal in Ordinary in 1949.

45 J. Barratt, ‘‘Public Trusts’’ (2006) 69 M.L.R. 514.46 Keech v Sandford (1726) Sel. Cas. t. King 61.47 J. Getzler, ‘‘Rumford Market and the Genesis of Fiduciary Obligations’’ in A. Burrows and A.

Rodger, eds, Mapping the Law (Oxford: OUP, 2006), p.577.48 Gough [1993] A.C. 646 at 661; Roylance [2000] 1 A.C. 311 at 318.49 Porter [2001] UKHL 67; [2002] 2 A.C. 357 at [88]. On the rarity of actual bias cases, see also R. v

Inner West London Coroner Ex p. Dallaglio [1994] 4 All E.R. 139 at 162; Locabail [2000] Q.B. 451 at [3].


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Thus, where the allegation of bias is based on the decision-maker having aninterest in the outcome of the matter under consideration, it is irrelevant thatthe decision-maker may not have been affected in any way by that interest:the ‘‘mere fact of [the decision-maker’s] interest is sufficient to disqualify himunless he has made sufficient disclosure’’.50 Thus, Lord Cottenham L.C.’sinterest in one of the parties in Dimes was sufficient reason to set aside hisdecision, even though the House of Lords considered that no one couldsuppose that he had actually been influenced by that interest in reaching hisdecision.51 Similarly, where the allegation is based not on an interest in theproceedings but on a real possibility of bias based on other considerations,the mere appearance of bias again suffices (such as where an arbiter’sconduct, whether during the hearing52 or prior to the hearing,53 suggeststhe possibility of prejudgment or prejudice against a party; or where closepersonal friendships and acquaintances,54 or animosities,55 between an arbiterand someone involved in the decision-making process raise that possibility).Bias law focuses its attention on the appearance of bias because of ‘‘thedifficulties in most situations of knowing whether there is real bias’’56 andthe difficulty in establishing whether that bias had any adverse effect on theoutcome of the matter under consideration.57

‘‘The insidious nature of bias makes its identification elusive. The law does whatit can by recognising that bias may be apparent as well as actual. Thusproof of an appearance of bias may be as fatal as proof of a state of mindwhich is actually partial.’’58

50 Pinochet [2000] 1 A.C. 119 at 133.51 Dimes (1852) 3 H.L.C. 759 at 793. For factual background, see F.A. Sharman, ‘‘Feudal Copyholder

and Industrial Shareholder: The Dimes Case’’ (1989) 10 Journal of Legal History 71.52 Antoun v R. [2006] H.C.A. 2; (2006) 224 A.L.R. 51; Broadhead v R. [2006] EWCA Crim 3062;

Steadman-Byrne v Amjad [2007] EWCA Civ 625; [2007] 1 W.L.R. 2484; Howell v Lees Millais [2007]EWCA Civ 720; (2007) 104(29) L.S.G. 24.

53 Locabail [2000] Q.B. 451 at [89]; Al-Hasan [2005] UKHL 13; [2005] 1 W.L.R. 688;Ezsias v NorthGlamorgan NHS Trust [2007] EWCA Civ 330; [2007] I.R.L.R. 603.

54 AWG Group Ltd v Morrison [2006] EWCA Civ 6; [2006] 1 W.L.R. 1163; R. v Pintori [2007]EWCA Crim 1700; (2007) 151 S.J.L.B. 984, and see Grant v Teacher’s Appeals Tribunal [2006] UKPC59, where the connection was insufficiently close to disqualify the judge.

55 Howell v Lees Millais [2007] EWCA Civ 720; (2007) 104(29) L.S.G. 24.56 Galligan, Due Process and Fair Procedures, p.445; see also M. Fordham, Judicial Review Handbook, 4th

edn (Oxford: Hart, 2004), para.61.2; Locabail [2000] Q.B. 451 at [3].57 R. v Justices of Hertfordshire (1845) 6 Q.B. 753 at 757; Galligan, Due Process and Fair Procedures,

pp.72, 73.58 Roylance [2000] 1 A.C. 311 at 318 (emphasis added); see also Gough [1993] A.C. 646 at 659, 672.

An allegation of bias based on an interest in the proceedings is conceptually linked with an allegationof bias based on the appearance of prejudice in that both indicate a lack of impartiality. ‘‘An interestin the outcome of the case or an indication of prejudice against a party to the case or his associateswill, of course, be a ground for concluding that there was a real possibility that the tribunal or one ofits members was biased’’: Davidson [2004] UKHL 34; (2005) 1 S.C. (HL) 7 at [47]. In Australia, theconceptual link has been taken to its logical conclusion, that the real possibility of bias test will sufficeon its own to identify all relevant cases of bias without needing a separate rule which automaticallydisqualifies a decision-maker for interest-based bias: see Ebner v Official Trustee [2000] H.C.A. 63; (2000)205 C.L.R. 337 at [33]–[37] and [54]–[55]; and Hot Holdings [2002] HCA 51, (2002) 210 C.L.R. 438at [69]. England currently retains the automatic disqualification rule (see Gough [1993] A.C. 646 at 661;



Difficulties of proof have also been important in the development of fiduciaryconflict doctrine. For example, it is often observed that fiduciary conflictdoctrine involves ‘‘a strict prophylactic approach to prevent a wrong whichmay enrich the defendant or harm the claimant’’,59 with the result thatthe doctrine applies even if it is clear that the fiduciary acted honestly andcould have done no more for his or her principal. A classic example of this‘‘prophylactic approach’’ is found in Keech v Sandford,60 where Lord King L.C.held that a trustee could not take for himself a renewal of the lease whichhe held on trust, despite the fact that there was evidence that the landlordhad refused to renew the lease for the benefit of the trust. Further examplescan be found in the fact that fiduciary doctrine considers it irrelevant that thefiduciary may have acted honestly, and will not inquire into that fact,61 andin the fact that it is similarly irrelevant that the fiduciary’s action may actuallyhave benefited his or her beneficiaries; the fairness of the transaction is notexamined.62 The justification for this approach lies in the difficulty in provingsuch matters.63 As Lord Eldon L.C. explained, the fiduciary conflict doctrine‘‘stands much more upon general principle than upon the circumstances of anyindividual case’’64 on the basis that:

‘‘. . . [T]hough you may see in a particular case, that [the trustee] hasnot made advantage, it is utterly impossible to examine upon satisfactoryevidence in the power of the Court, by which I mean, in the power of

Pinochet [2000] 1 A.C. 119 at 132–133, 137, 140–141; Roylance [2000] 1 A.C. 311 at 318), but eventhat apparently absolute rule can be departed from ‘‘provided the potential effect of any decision on thejudge’s personal interest is so small as to be incapable of affecting his decision one way or the other’’:Locabail [2000] Q.B. 451 at [10]. For further indications of the conceptual link between interest-basedbias and the reasonable apprehension of bias, see Meadowvale Stud Farm Ltd v Stratford CC [1979] 1N.Z.L.R. 342 at 348; Webb (1994) 181 C.L.R. 41 at 74–75; Ebner v Official Trustee in Bankruptcy [1999]FCA 110; (1999) 91 F.C.R. 353 at [37]; Clenae Pty Ltd v Australia & New Zealand Banking Group Ltd[1999] VSCA 35; [1999] 2 V.R. 573 at [3], [31]; A.A. Olowofoyeku, ‘‘The Nemo Judex Rule: TheCase Against Automatic Disqualification’’ [2000] P.L. 456 at p.473; M. Allars, ‘‘Citizenship Theoryand the Public Confidence Rationale for the Bias Rule’’ (2001) 18 Law in Context 12 at p.30.

59 Hayton & Marshall, para.6-24; see also Pilmer [2001] HCA 31; (2001) 207 C.L.R. 165 at [153];Maguire v Makaronis (1997) 188 C.L.R. 449 at 492; Ebner [2000] H.C.A. 63; (2000) 205 C.L.R. 337at [159]; V. Brudney, ‘‘Contract and Fiduciary Duty in Corporate Law’’ (1997) 38 Boston College LawReview 595 at p.603; J. Berryman, ‘‘Equitable Compensation for Breach by Fact-Based Fiduciaries:Tentative Thoughts on Clarifying Remedial Goals’’ (1999) 37 Alberta Law Review 95 at pp.98, 107.

60 (1726) Sel. Cas. t. King 61.61 Ex p. Lacey (1802) 6 Ves. 625 at 630; Ex p. James (1803) 8 Ves. 337 at 345, 348; Hamilton v Wright

(1842) 9 Cl. & Fin. 111 at 124, HL; Aberdeen Railway Co v Blaikie Bros (1854) 1 Macq. 461 at 475, HL;De Bussche v Alt (1878) 8 Ch.D. 286 at 316; Boston Deep Sea Fishing & Ice Co v Ansell (1888) 39 Ch.D.339 at 369; Bray [1896] A.C. 44 at 48, 52; Collinge [2005] 1 N.Z.L.R. 847 at [61].

62 James (1803) 8 Ves. 337 at 349; Hamilton (1842) 9 Cl. & Fin. 111 at 123; Re Bloye’s Trusts (1849)1 Mac. & G. 488 at 491–492; Aberdeen Railway (1854) 1 Macq. 461 at 472; Parker (1874) L.R. 10Ch.App. 96 at 124–125; De Bussche (1878) 8 Ch.D. 286 at 316; Wright v Morgan [1926] A.C. 788 at798, PC; Regal (Hastings) Ltd v Gulliver [1967] 2 A.C. 134 at 153; Boardman v Phipps [1967] 2 A.C. 46at 129; Canadian Aero Service Ltd v O’Malley [1974] S.C.R. 592 at 608–610; Swain v Law Society [1982]1 W.L.R. 17 at 29.

63 Hayton & Marshall, para.6-24; R. Flannigan, ‘‘The Strict Character of Fiduciary Liability’’ [2006]New Zealand Law Review 209.

64 James (1803) 8 Ves. 337 at 345; see also Gibson v Jeyes (1801) 6 Ves. 266 at 271; Ex p. Bennett(1805) 10 Ves. 381 at 396.


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the parties, in ninety-nine cases out of an hundred, whether he has madeadvantage, or not.’’65

Similarly, in Ex p. James, he explained the rule on the basis that:

‘‘. . . [T]he trustee is bound by his duty to acquire all the knowledgepossible, to enable him to sell to the utmost advantage for the cestui quetrust, [but] the question, what knowledge he has obtained, and whetherhe has fairly given the benefit of that knowledge, to the cestui que trust,which he always acquires at the expense of the cestui que trust, no Courtcan discuss with competent sufficiency or safety to the parties.’’66

A second methodological similarity, related to the first, can be identifiedin the tests which each doctrine applies. First, in the context of bias law,the test for the appearance of bias is whether a fair-minded and informedobserver, having considered the facts, would conclude that there was a‘‘real possibility’’67 that the decision-maker was biased. The very samelanguage is used in fiduciary conflict doctrine when determining whetherthe fiduciary’s personal interest conflicts with her duty to the principal: forexample, in Aberdeen Railway v Blaikie, Lord Cranworth L.C. noted that ‘‘noone, having [fiduciary] duties to discharge, shall be allowed to enter intoengagements in which he has, or can have, a personal interest conflicting, orwhich possibly may conflict, with the interests of those whom he is bound toprotect’’.68 Expanding on this, Lord Upjohn explained in Boardman v Phippsthat:

‘‘The phrase ‘possibly may conflict’ requires consideration. In my viewit means that the reasonable man looking at the relevant facts andcircumstances of the particular case would think that there was a realsensible possibility of conflict; not that you could imagine some situationarising which might, in some conceivable possibility in events notcontemplated as real sensible possibilities by any reasonable person, resultin a conflict.’’69

65 Lacey (1802) 6 Ves. 625 at 627; see also Bennett (1805) 10 Ves. 381 at 385–386.66 James (1803) 8 Ves. 337 at 348–349.67 Porter [2001] UKHL 67; [2002] 2 A.C. 357 at [103]; Lawal [2003] UKHL 35; [2004] 1 All E.R.

187 at [2];Gough [1993] A.C. 646 at 668.68 Aberdeen Railway (1854) 1 Macq. 461 at 471 (emphasis added); see also Mothew [1998] Ch. 1 at 18.69 Boardman [1967] 2 A.C. 46 at 124 (emphasis added). Lord Upjohn was in dissent in Boardman v

Phipps ‘‘on the facts but not on the law’’: Queensland Mines Ltd v Hudson (1978) 18 A.L.R. 1 at 3,PC. His description of the fiduciary conflict principle is generally regarded as an accurate statement ofthe doctrine: Industrial Development Consultants Ltd v Cooley [1972] 1 W.L.R. 442 at 450–451; Swain[1982] 1 W.L.R. 17 at 31; Beach Petroleum [1999] NSWCA 408; (1999) 48 N.S.W.L.R. 1 at [425];Bhullar v Bhullar [2003] EWCA Civ 424; [2003] 2 B.C.L.C. 241 at [30], [42]; Quarter Master UK Ltdv Pyke [2004] EWHC 1815 (Ch); [2005] 1 B.C.L.C. 245 at [55]; Foster Bryant [2007] EWCA Civ200, [2007] Bus. L.R. 1565 at [52]; R.P. Meagher, J.D. Heydon and M.J. Leeming, Meagher, Gummowand Lehane’s Equity: Doctrines and Remedies, 4th edn (Chatswood: Butterworths, 2002), para.5-065; J.A.McGhee (ed.), Snell’s Equity, 31st edn (London: Thomson, 2005), para.7-25; P. Pettit, Equity and theLaw of Trusts, 10th edn (Oxford: OUP, 2006), p.442.



The similarity with bias law is clear, both in terms of the language employed andthe methodologies that the language reflects: in both cases a ‘‘real possibility’’70

suffices.A third methodological similarity is found in the way each doctrine addresses

the issue of consent to its breach. A fiduciary is entitled to act in a situation thatwould otherwise be caught by the conflict principle provided the fiduciary’sprincipal consents to the fiduciary so acting.71 Similarly, a decision-maker isnot disqualified from acting, even where a fair-minded and informed observermight consider there was a real possibility that the decision-maker was biased,provided the parties to the proceedings have consented to the decision-makercontinuing to act.72 In each case the waiver or consent must be made with thebenefit of full information. In the context of bias law, the decision-maker isexpected to make ‘‘sufficient disclosure’’73 of any interest in the proceedings:as Lord Woolf C.J. put it, ‘‘[i]f disclosure is made, then full disclosure mustbe made’’.74 Here, disclosure is not an obligation,75 but rather a mechanismfor obtaining insulation against the effects of bias law’s disqualification rule.Similarly, it is clear that a fiduciary can only avoid fiduciary conflict doctrine’sdisqualification if he obtains his principal’s fully informed consent by makingfull and frank disclosure of all facts material to the conflict.76 Again, ithas been said that such disclosure is not an obligation: it ‘‘is an answerto circumstances which otherwise indicate disloyalty, not a mainspring ofequitable liability’’.77

There are substantial similarities, therefore, in the methodologies employedin bias law and fiduciary conflict doctrine. However, it remains to considerwhether the two doctrines can be considered analogous in terms of theirrespective rationales and remedies.

70 For bias law see, e.g. Porter [2001] UKHL 67; [2002] 2 A.C. 357 at [103]; Lawal [2003] UKHL35; [2004] 1 All E.R. 187 at [2]; Dallaglio [1994] 4 All E.R. 139 at 151.

71 Lacey (1802) 6 Ves. 625 at 626; Downes v Grazebrook (1817) 3 Mer. 200 at 208; Sanderson v Walker(1807) 13 Ves. 601 at 601; Regal (Hastings) [1967] 2 A.C. 134 at 150, 157; Brown v Inland RevenueCommissioners [1965] A.C. 244 at 263, 265, 266, 267; Boardman [1967] 2 A.C. 46 at 109; QueenslandMines (1978) 18 A.L.R. 1 at 8;Quarter Master [2004] EWHC 1815 (Ch); [2005] 1 B.C.L.C. 245 at [70].

72 Wakefield Local Board of Health v West Riding & Grimsby Railway Co (1865) L.R. 1 Q.B. 84 at 86;R. v Nailsworth Licensing Justices Ex p. Bird [1953] 1 W.L.R. 1046 at 1049; Locabail [2000] Q.B. 451 at[15], [26]; Steadman-Byrne [2007] EWCA Civ 625; [2007] 1 W.L.R. 2484 at [17].

73 Pinochet [2000] 1 A.C. 119 at 133.74 Taylor v Lawrence [2002] EWCA Civ 90; [2003] Q.B. 528 at [65].75 Ebner [2000] H.C.A. 63; (2000) 205 C.L.R. 337 at [70].76 Boardman [1967] 2 A.C. 46 at 109; Re Haslam & Hier-Evans [1902] 1 Ch. 765 at 769–770; New

Zealand Netherlands Society ‘‘Oranje’’ Inc v Kuys [1973] 1 W.L.R. 1126 at 1132, PC; Imperial MercantileCredit Association v Coleman (1873) L.R. 6 H.L. 189 at 200, 205; Dunne v English (1874) L.R. 18 Eq.524 at 533–535; Gray v New Augarita Porcupine Mines Ltd [1952] 3 D.L.R. 1 at 14; Movitex [1988]B.C.L.C. 104 at 121; Gwembe Valley Development Co Ltd v Koshy [2003] EWCA Civ 1478; [2004] 1B.C.L.C. 131 at [65].

77 Breen v Williams (1996) 186 C.L.R. 71 at 125; see also P & V Industries Pty Ltd v Porto [2006] VSC131 at [24]–[25]; Shepherds Investments Ltd v Walters [2006] EWHC 836 (Ch); [2007] 2 B.C.L.C. 202at [132]; although cf. M. Conaglen, ‘‘Equitable Compensation for Breach of Fiduciary Dealing Rules’’(2003) 119 L.Q.R. 246.


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RationalesIn order to compare the rationales of fiduciary conflict doctrine and bias lawit is necessary first to identify those rationales. It will be suggested that, whenthis is done, there are distinct similarities between the two rationales, althoughthe similarities may not be as great as first appears from the superficial linguisticparallels between the two doctrines.

Notwithstanding some suggestions in the case law that fiduciary conflictdoctrine has some moralistic purpose, to hold fiduciaries ‘‘to something stricterthan the morals of the market place’’,78 the more compelling view of fiduciaryconflict doctrine’s rationale is that it is far more instrumentalist in its outlook.Its purpose is to provide a subsidiary and prophylactic form of protection fornon-fiduciary duties which enhances the chance that those non-fiduciary dutieswill be properly performed.79 The primary means by which this protectivefunction is given effect is by seeking to insulate fiduciaries from influences thatare likely to distract them from such proper performance. Where a fiduciaryacts with a conflict between his personal interest and the duty that he owesto his principal, there is a risk that the fiduciary’s personal interest will tempthim away from performing his duty properly. It is at that temptation thatfiduciary conflict doctrine strikes, seeking to avert breaches of non-fiduciaryduties by neutralising influences likely to sway the fiduciary away from theproper performance of those non-fiduciary duties. As has already been noted,it is often observed that fiduciary conflict doctrine is applied in a prophylacticmanner, but fiduciary conflict doctrine is more than merely prophylactic in itsapplication; in its very nature it operates as a prophylactic protection against therisk that non-fiduciary duties will be breached. Numerous cases illustrate thisfunction,80 but for present purposes two examples will suffice. First, in AberdeenRailway v Blaikie, Blaikie was a director of a railway company who entered intoa contract to buy iron chairs to secure railway tracks. The company acceptedaround two-thirds of the chairs, but then refused to accept delivery of anymore on the basis that Blaikie was also a principal of the firm which wasmanufacturing and selling the chairs. The House of Lords held for the railwaycompany. Lord Cranworth L.C. explained why fiduciary conflict doctrineinterferes in such circumstances:

‘‘Blaikie was . . . a director . . . In that character it was his bounden dutyto make the best bargains he could for the benefit of the Company. Whilehe filled that character . . . he entered into a contract on behalf of theCompany with his own firm . . . His duty to the company imposed onhim the obligation of obtaining these chairs at the lowest possible price.His personal interest would lead him in an entirely opposite direction,would induce him to fix the price as high as possible. This is the very evilagainst which the rule in question is directed.’’81

78 Meinhard v Salmon (1928) 164 N.E. 545 at 546.79 M. Conaglen, ‘‘The Nature and Function of Fiduciary Loyalty’’ (2005) 121 L.Q.R. 452.80 Conaglen, (2005) 121 L.Q.R. 452 at pp.460–472.81 Aberdeen Railway (1854) 1 Macq. 461 at 472–473.



In other words, a fiduciary is prohibited from acting in a situation where thereis a conflict between the basic duty which he owes to his principal and his ownpersonal interest because that personal interest is likely, or has a ‘‘tendency’’,82

to lead the fiduciary away from proper performance of his duty.83

Lord Herschell reflects the same instrumentalist outlook in his explanationof the fiduciary conflict principle in Bray v Ford:

‘‘It does not appear to me that this rule is, as has been said, founded uponprinciples of morality. I regard it rather as based on the consideration that,human nature being what it is, there is danger, in such circumstances, ofthe person holding a fiduciary position being swayed by interest ratherthan by duty, and thus prejudicing those whom he is bound to protect.’’84

One then has to identify an underlying rationale in bias law. This is a moredifficult task. One can begin, it is suggested, with the proposition that legal sys-tems have judges and other binding decision-makers because it is inevitable thatpersons within such systems will enter into dispute. Disputes cannot always beresolved by consensus between the disputants,85 and so some form of authorityis needed, both in terms of rule-creation and in terms of adjudication over dis-putes about the application of those rules and the facts on which they operate.86

Thus, as Michael Freeman explains, ‘‘[j]udges are instituted as one of the ways inwhich society resolves such conflicts’’.87 As Alec Stone Sweet notes, the ‘‘socialdemand for [third-party dispute resolution] is so basic, intensive, and universalthat one can find no human community that fails to supply it in some form’’.88

Equally, Freeman also recognises that there ‘‘are a number of shared expecta-tions which define the role of the judge’’.89 The question that arises is whetherthe rationale underlying bias law is instrumentalist, as in the case of fiduciaryconflict doctrine, or is instead rather more a core element of the judicialfunction and so not so much protective of that function as constitutive of it.

The requirement that judges act without any real possibility of bias appearsto be a relative late-comer, at least in English law. Although concerns aboutjudges being parties in the case at hand or having financial interests in its

82 Hamilton (1842) 9 Cl. & Fin. 111 at 123.83 Bennett (1805) 10 Ves. 381 at 394; Bloye’s Trusts (1849) 1 Mac. & G. 488 at 495.84 Bray [1896] A.C. 44 at 51; see also Bennett (1805) 10 Ves. 381 at 394; Costa Rica Railway Co

Ltd v Forwood [1901] 1 Ch. 746 at 761; Harris v Digital Pulse Pty Ltd [2003] NSWCA 10; (2003) 56N.S.W.L.R. 298 at [414]–[415]; Collinge [2005] 1 N.Z.L.R. 847 at [55].

85 J. Finnis, Natural Law and Natural Rights (Oxford: OUP, 1980), pp.231–233; D.J. Galligan, Law inModern Society (Oxford: OUP, 2007), pp.72–74.

86 H.L.A. Hart, The Concept of Law, 2nd edn (Oxford: OUP, 1994), pp.93–94, 96–98.87 Freeman, Lloyd’s Introduction to Jurisprudence, p.1377; see also J. Raz, The Authority of Law

(Clarendon Press, Oxford, 1979), p.182; W. Twining and D. Miers, How To Do Things With Rules,4th edn (London: Butterworths, 1999), p.169; A. Stone Sweet, Governing With Judges (Oxford: OUP,2000), pp.11, 12; M. Shapiro and A. Stone Sweet, On Law, Politics & Judicialization (Oxford: OUP,2002), p.57; A. Beever, ‘‘The Law’s Function and the Judicial Function’’ (2003) 20 N.Z.U.L.R. 299at p.311; A. Stone Sweet, The Judicial Construction of Europe (Oxford: OUP, 2004), pp.3, 6; J. Bell,Judiciaries within Europe (Cambridge: CUP, 2006), p.356.

88 Stone Sweet, Judicial Construction, p.6.89 Freeman, Lloyd’s Introduction to Jurisprudence, p.1377.


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outcome seem to be of longer standing,90 it was not until the 1860s thatit became unequivocally established that judges should not adjudicate wherethere was a real likelihood of bias.91 Certainly, there are numerous examplesas late as that time of judges sitting on appellate panels deliberating over thecorrectness of a decision they had themselves reached in a lower court,92 andindeed that practice was still extant to a degree into the middle of the 20thcentury,93 despite the fact that at ‘‘best [such a person] is likely to inclinetowards affirming his earlier decision; at worst he can be depicted as a judgein his own cause’’.94 There is also anecdotal historical evidence of financialinterests not being treated as seriously as they might now: according to SirRichard Bethell, ‘‘Lord Eldon was a holder of Bank stock, but he never fora moment considered that he was disqualified from adjudicating in a case inwhich the Bank was concerned’’.95

The relevance of all this is that it suggests that concerns about bias are notintrinsic to the concept of being a judge or arbiter. That point seems furthersupported by the possibility of the bias objection being waived by the parties,96

of such objections being statutorily proscribed by Parliament,97 and of judgessitting, despite having interests in the subject-matter of the litigation, where noalternative decision-maker is available, or where ‘‘necessity’’ somehow other-wise so requires.98 As Cockburn C.J. pointed out in Wakefield v West Riding, adecision-maker who has an interest in the outcome is not thereby ‘‘absolutelyincompetent’’ to act, because the parties might consent and waive the objection,unless Parliament has positively enacted for such all-embracing incompetence.99

90 de Smith, Woolf & Jowell, paras 11-004 and 11-005; R. Cranston, ‘‘Disqualification of Judges forInterest, Association or Opinion’’ [1979] P.L. 237 at p.238; Earl of Derby’s Case (1613) 12 Co. Rep.114 at 114; Wood v Mayor & Commonalty of London (1701) Holt K.B. 396.

91 de Smith, Woolf & Jowell, para.11-004.92 Chambers v Waters (1833) Coop. t. Brough. 91 and (1844) 11 Cl. & Fin. 684 (Lord Brougham

confirmed the Vice-Chancellor’s decision on appeal and then again in the House of Lords on appealfrom himself); Trevelyan v Charter (1835) 4 L.J. (N.S.) Ch. 209 and (1844) 11 Cl. & Fin. 714 (LordCottenham sat in the House of Lords on appeal from his own decision as Master of the Rolls); Salomonsv Pender (1865) 3 H. & C. 639 (Martin B. sat as trial judge and then on the appeal); Overend Gurney &Co v Gurney (1869) 4 Ch. App. 701 and Overend & Gurney Co v Gibb (1872) L.R. 5 H.L. 480 (LordHatherley L.C. sat in the House of Lords on appeal from his own decision below). See also Sharman,(1989) 10 Journal of Legal History 71 at pp.86–87.

93 R. v Lovegrove [1951] 1 All E.R. 804.94 de Smith, Woolf & Jowell, para.11-017.95 London & North-Western Railway Co v Lindsay (1858) 3 Macq. 99 at 114–115. It is difficult to be

certain, but the reference appears to be to Bank of England stock.96 Locabail [2000] Q.B. 451 at [15], [26]; Craig, Administrative Law, p.465; Wade & Forsyth,

Administrative Law, p.464; de Smith, Woolf & Jowell, paras 11-036 to 11-037.97 Craig, Administrative Law, p.464; Wade & Forsyth, Administrative Law, pp.462–463; de Smith, Woolf

& Jowell, para.11-038; Kirkstall [1996] 3 All E.R. 304 at 319.98 Craig, Administrative Law, p.464; Wade & Forsyth, Administrative Law, p.459; de Smith, Woolf &

Jowell, para.11-039; Ebner [2000] H.C.A. 63; (2000) 205 C.L.R. 337 at [64]–[65], [172]. This situationis naturally rare, but not non-existent: e.g. Dimes (1852) 3 H.L.C. 759 (decisions of the Vice-Chancellorhad to be enrolled by the Lord Chancellor to be appealed against, and the Lord Chancellor’s interestdid not invalidate this part of the process); H. Tolputt & Co Ltd v Mole [1911] 1 K.B. 836 at 838–839;Judges v Attorney General (Saskatchewan) (1937) 53 T.L.R. 464 at 465, PC; London & North-WesternRailway Co v Lindsay (1858) 10 Scots R.R. 41 at 48.

99 Wakefield (1865) L.R. 1 Q.B. 84 at 86.



If it is not inherent in the very nature of being a judge that one cannot actwhere there is a reasonable apprehension of bias, then bias law’s rules musthave some other normative justification. It is arguable that bias law reflectsa concern to ensure good judging. As de Smith puts it, an ‘‘accurate decisionis more likely to be achieved by a decision-maker who is in fact impartialor disinterested in the outcome of the decision’’.100 In other words, bias lawseeks to avoid situations where judges face temptations which might101 leadthem not to perform properly their core function qua judges, of reachingrational decisions based on accurate findings of fact and proper applicationof legal rules, principles and standards. Bias law is concerned with ensuringthat the decision-maker will ‘‘ignore extraneous considerations, prejudices andpredilections and bring an objective judgment to bear on the issues beforehim’’102 and that he ‘‘is not turned aside by any motivation to favour one sideas against the other’’.103 Lord Bingham explained in Davidson v Scottish Ministersthat ‘‘[w]hat disqualifies the judge is the presence of some factor which couldprevent the bringing of an objective judgment to bear, which could distort thejudge’s judgment’’.104

However, this conceptualisation of bias law is disputed. As Laurence Tribehas pointed out, there are ‘‘alternative conceptions of the primary purpose ofprocedural due process and . . . competing visions of how that purpose mightbest be achieved’’.105 The conception just presented treats bias law as having afundamentally instrumentalist rationale, as a protective ‘‘means of assuring thatthe society’s agreed-upon rules of conduct, and its rules for distributing variousbenefits, are in fact accurately and consistently followed’’.106 Gerry Maher, bycontrast, has argued that bias law is better understood on the basis that beingjudged by an unbiased decision-maker is of intrinsic value in that it properlyrespects the autonomy of the party affected by the decision.107 He developedthis argument by suggesting that an instrumental understanding of bias law

100 de Smith, Woolf & Jowell, para.11-002; see also Wade & Forsyth, Administrative Law, p.440;Galligan, Due Process and Fair Procedures, p.73. Carol Harlow and Richard Rawlings have pointedout that ‘‘many administrative decisions are not straightforward rule applications but rather involvequestions of judgment or interpretation’’: C. Harlow and R. Rawlings, Law and Administration, 2ndedn (London: Butterworths, 1997), p.497. This observation does not undermine the point made inthe text (cf. G. Richardson, ‘‘The Legal Regulation of Process’’ in G. Richardson and H. Genn (eds),Administrative Law and Government Action (Oxford: OUP, 1994), p.105, at p.111). One does not needto think there is a single correct decision to be reached by the exercise of a discretion (which itselfwould deny the existence of discretion) in order to accept that a decision-maker’s judgment is morelikely to be better exercised if the decision-maker is required not to act in a situation where there isa real possibility of bias. (On one view, this is what Ronald Dworkin meant by his ‘‘right answers’’thesis: B. Bix, Jurisprudence: Theory and Context, 4th edn (London: Thomson, 2006), pp.93–95).

101 Meadowvale [1979] 1 N.Z.L.R. 342 at 348; Davidson [2004] UKHL 34; (2005) 1 S.C. (HL) 7 at[6], [7].

102 Locabail [2000] Q.B. 451 at [25].103 Roylance [2000] 1 A.C. 311 at 318.104 Davidson [2004] UKHL 34; (2005) 1 S.C. (HL) 7 at [6] (emphasis added).105 L.H. Tribe, American Constitutional Law, 2nd edn (Mineola: Foundation Press, 1988), p.666.106 Tribe, American Constitutional Law, pp.666–667.107 G. Maher, ‘‘Natural Justice as Fairness’’ in N. MacCormick and P. Birks (eds), The Legal Mind

(Oxford: Clarendon Press, 1986), p.103, at pp.114–116; see also Richardson, ‘‘The Legal Regulation ofProcess’’, p.118. For general discussion of the two ‘‘competing visions’’, see L.H. Tribe, Constitutional


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fails to explain why it disqualifies judges where it seems clear that the judge’sinterest in the outcome did not actually have any effect on his or her decision,as with Lord Cottenham’s decision in Dimes.108 Instead, Maher argued thatrationalising bias law as based on respect for autonomy better justifies thebias rule than reliance on the indirect instrumental value in generally achievingbetter or more accurate decisions.109

It is not clear, however, that this ‘‘dignitarian’’ challenge defeats theinstrumentalist analysis when it is properly understood. First, the dichotomythat Maher’s approach creates between respect for autonomy, on the one hand,and accuracy in decision-making, on the other, is a false one. As Denis Galliganexplains, ‘‘accurate decisions themselves constitute an important element offair treatment, which in turn constitutes an important element of respectfor persons’’,110 as it is only by such decisions that a person’s rights andother expectations created by law are given proper protection and, ultimately,respect. In other words, the instrumentalist account is itself an important partof, rather than a counter-point to, the goal of autonomy.111 Maher’s argumentfails to accord sufficient weight to the fact that:

‘‘[I]t is rational and defensible to adopt certain procedures on the groundthat they will normally contribute to better outcomes; the rules requiringimpartial decision-makers . . . could be justified on the ground that biasor personal interest creates a risk that extraneous matters will be takeninto account and influence the outcome.’’112

Secondly, Maher’s critique of the instrumentalist account fails because it is notat all clear why it accords any greater respect to autonomy or dignity for adecision to be attacked on the basis of bias where it is clear that the supposedbias had no effect on that decision: certainly, the party whose fruits of victoryare snatched away by a conclusion that the decision-maker was apparentlybiased, even though it is clear that the decision was in no way affected by thatbias, will not necessarily feel that her autonomy is respected when a perfectlysensible decision in her favour is overturned. The concern raised by Maher ismore directly focused on the fact that bias law is broader in its ambit than it

Choices (Cambridge MA: Harvard University Press, 1985), p.13; Tribe, American Constitutional Law,pp.666–667; Richardson, ‘‘The Legal Regulation of Process’’, pp.111–114.

108 Maher, ‘‘Natural Justice as Fairness’’, p.107; see also B. Toy-Cronin, ‘‘Waiver of the Rule AgainstBias’’ (2002) 9 Auckland University Law Review 850 at p.871.

109 Maher, ‘‘Natural Justice as Fairness’’, pp.108–109.110 Galligan, Due Process and Fair Procedures, p.78.111 Indeed, arguably autonomy is itself an intermediate, and hence instrumentalist, goal. As Joseph

Raz put it, ‘‘[a]utonomy is valuable only if exercised in pursuit of the good’’: J. Raz, The Morality ofFreedom (Oxford: Clarendon Press, 1986), p.381; see also D. Feldman, Civil Liberties and Human Rightsin England and Wales, 2nd edn (Oxford: OUP 2002), p.8; R.A. Shiner, Freedom of Commercial Expression(Oxford: OUP, 2003), pp.230–233. As such, an appeal to autonomy does not defeat an instrumentalistaccount.

112 Galligan, Due Process and Fair Procedures, p.72 (see also p.73). Similarly, Heydon J. has argued(extra-curially) that the ‘‘characteristics of regularity’’ in a trial, which include the judge’s impartiality,are important because the ‘‘more regular the trial, the more likely it is that it will be fair; and the morelikely it is that a just result correct in law will be achieved’’: see J.D. Heydon, ‘‘Reciprocal duties ofBench and Bar’’ (2007) 81 Australian Law Journal 23 at pp.25–26.



need be: it has the potential to apply both where it is unclear that the possibilityof bias has had any impact on the decision and also where it is clear that thepossibility of bias has not materialised at all. But an instrumentalist account iscapable of explaining this just as adequately as, if not better than, an accountbased on respect for autonomy, because the crux of this issue is simply thedifficulty inherent in proving bias. Again, Galligan explains this well:

‘‘. . . bias or personal interest creates a risk that extraneous matters will betaken into account and influence the outcome. The difficulty of detecting theinfluence of such matters is so great that a strict rule is justified; that risk mighteven justify a further rule to the effect that actual partiality need not beproved, but that it is enough to bring evidence of a risk of partiality.’’113

As has been demonstrated, the difficulties in identifying bias, due to its‘‘insidious nature’’,114 have indeed led the law to take a prophylactic, or‘‘precautionary’’,115 approach to its operation: the mere fact of a risk ofprejudice suffices because of the difficulty in proving whether that riskmaterialised in the decision itself. Hence, bias law focuses its attention onthe question whether there is a:

‘‘. . . real danger of bias having affected the decision in the sense of havingcaused the decision-maker, albeit unconsciously, to weigh the competingconsiderations, and so decide the merits, unfairly.’’116

As the High Court of Australia put it in Ebner, in language which is clearlyreminiscent of Lord Herschell’s discussion of fiduciary conflict doctrine in Brayv Ford,117 the ‘‘apprehension of bias principle admits of the possibility of humanfrailty’’ and is based on ‘‘identification of what it is said might lead a judge(or juror) to decide a case other than on its legal and factual merits’’.118 Biaslaw takes a prophylactic approach in order to avoid situations which ‘‘mightbe thought (by the reasonable observer) possibly to divert the judge from decidingthe case on its merits’’.119 It justifies that prophylactic approach on the basis that‘‘bias operates in such an insidious manner that the person alleged to be biasedmay be quite unconscious of its effect’’,120 which makes its identification andproof exceedingly difficult.121

If it is correct that bias law’s fundamental rationale is to provide aninstrumentalist form of protection against decisions being made otherwisethan on the merits, then the analogy drawn between it and fiduciary conflictdoctrine is viable. If, on the other hand, Maher were correct that bias law’s

113 Galligan, Due Process and Fair Procedures, p.72 (emphasis added).114 Roylance [2000] 1 A.C. 311 at 318.115 Modahl v British Athletic Federation Ltd [2001] EWCA Civ 1447; [2002] 1 W.L.R. 1192 at [63].116 Dallaglio [1994] 4 All E.R. 139 at 152 (emphasis added); see also Modahl [2001] EWCA Civ 1447;

[2002] 1 W.L.R. 1192 at [68].117 See text accompanying fn.84.118 Ebner [2000] H.C.A. 63; (2000) 205 C.L.R. 337 at [8] (emphasis added).119 Ebner [2000] H.C.A. 63; (2000) 205 C.L.R. 337 at [30] (emphasis added).120 Gough [1993] A.C. 646 at 672 (see also at 659); Locabail [2000] Q.B. 451 at [89]; Pintori [2007]

EWCA Crim 1700; (2007) 151 S.J.L.B. 984 at [23].121 Roylance [2000] 1 A.C. 311 at 318.


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fundamental rationale is respect for the autonomy of the parties, then theconnection between the two doctrines is far less clear. Equally, if bias law isconsidered an intrinsic part of the decision-making function, then the analogybetween the two doctrines is far from obvious. For the reasons mentionedabove, it is suggested that there is room for bias law to be understood in aninstrumentalist fashion, which in turn means an analogy drawn between it andfiduciary conflict doctrine is not radically misconceived. The insidious risk ofa decision-maker being affected by an unconscious bias is sufficient reason forthe law to refuse to tolerate the situation, without inquiring into whether itactually had any influence on the decision of the judge, just as fiduciary conflictdoctrine is concerned to protect proper performance of fiduciaries’ duties byseeking to eliminate conflicting personal interests.

It might be thought that the analogy is negated, or at least undermined,by the frequent statements that bias law is based on ‘‘public confidence inthe integrity of the administration of justice’’,122 whereas fiduciary conflictdoctrine does not appear so concerned with securing public confidence. Thereare at least three points in answer to this objection. First, while fiduciaryconflict doctrine might not appear to be concerned with securing publicconfidence, it is nonetheless concerned with securing confidence—it clearlyseeks to give principals confidence in their fiduciaries by the imposition of ruleswhich contribute to ensuring fiduciaries properly perform their non-fiduciaryduties. Tamar Frankel has argued that fiduciary doctrine is designed so asto entitle principals to trust and rely on their fiduciaries: ‘‘Fiduciaries shouldbe trustworthy.’’123 This sentiment can be shown to have a strong pedigreein English case law. As long ago as 1795, Lord Thurlow said that fiduciaryconflict doctrine:

‘‘. . . seems to be a principle so exceedingly plain, that it is in its ownnature indisputable, for there can be no confidence placed, unless men will dothe duty they owe to their constituents, or be considered to be faithfullyexecuting it, if you apply a contrary rule.’’124

While fiduciary conflict doctrine allows the fiduciary’s principal, rather thanthe public, to have confidence, the nature of the confidence remains the same:

‘‘. . . confidence depends . . . on the procedures being of a kind whichwe have good reason to believe will produce the right results. The valueis not in the procedures themselves but in their contribution to the rightor best outcomes.’’125

122 Serjeant v Dale (1877) 2 Q.B.D. 558 at 567; Metropolitan Properties Co (FGC) Ltd v Lannon [1967]1 Q.B. 577 at 599; Anderton v Auckland City Council [1978] 1 N.Z.L.R. 657 at 687; Gough [1993]A.C. 646 at 661, 659; Pinochet [2000] 1 A.C. 119 at 140–141, 144; Roylance [2000] 1 A.C. 311 at 318;Modahl [2001] EWCA Civ 1447; [2002] 1 W.L.R. 1192 at [66]; Lawal [2003] UKHL 35; [2004] 1 AllE.R. 187 at [15]. See also Allars, (2001) 18 Law in Context 12 at p.43; Toy-Cronin, (2002) 9 AucklandUniversity Law Review 850 at p.873; Taggart, [2003] New Zealand Law Review 99 at p.104.

123 T. Frankel, ‘‘Fiduciary Duties as Default Rules’’ (1995) 74 Oregon Law Review 1209 at p.1228(emphasis original).

124 York Buildings Co v Mackenzie (1795) 3 Paton 378 at 393 (emphasis added).125 Galligan, Due Process and Fair Procedures, p.72; see also Raz, The Morality of Freedom, p.55.



In other words, both sets of doctrine enable confidence in outcomes by seekingto ensure that the procedures by which those outcomes are reached are freefrom factors which might cause those outcomes to be doubted.

The second point to be made is that while public confidence in theadministration of justice is important to the doctrine of bias, its importanceought not to be overstated. The doctrine is also important to the confidenceof the parties to the proceeding, as is emphasised in Lord Bingham’s referencein Davidson v Scottish Ministers to ‘‘maintaining the confidence of the partiesand the public’’,126 and indeed even more so in Lord Hope’s reference tothe doctrine as a matter of individual right.127 Consistently with this, thepublic’s potential lack of confidence in the justice system does not preventa litigant from waiving his or her right to object on the grounds of bias.128

The public’s confidence remains important in determining whether there isan appearance of bias in the circumstances, but it is not the sum total of thedoctrine of bias.

The third point worthy of note in this regard is that, while fiduciarydoctrine appears to be concerned more with promoting confidence in privatearrangements than with promoting public confidence, there is a very real sensein which fiduciary doctrine also operates so as to promote public confidence.In Ex p. Bennett, Lord Eldon L.C. noted that ‘‘the safety of mankind requiresthe Court to act upon the general [fiduciary] principle’’.129 There is an elementof rhetorical hyperbole in this dictum, but the point being made is that thedoctrine is based on a concern to ensure public confidence in fiduciaries aswell as the confidence of individual principals. As Paul Finn put it:

‘‘. . . the fiduciary principle . . . is, itself, an instrument of public policy.It has been used, and is demonstrably used, to maintain the integrity,credibility and utility of relationships perceived to be of importance in asociety. And it is used to protect interests, both personal and economic,which a society is perceived to deem valuable.’’130

It should be noted that it is not contended that the analogy between biaslaw and fiduciary conflict doctrine is perfect. In particular, frequent referenceswithin bias law to ‘‘independence’’ and ‘‘impartiality’’ have the potential tobe misleading in the fiduciary context because pure independence is not an

126 Davidson [2004] UKHL 34; (2005) 1 S.C. (HL) 7 at [7]127 Davidson [2004] UKHL 34; (2005) 1 S.C. (HL) 7 at [49].128 Locabail [2000] Q.B. 451 at [15], [26]; Craig, Administrative Law, p.465; Wade & Forsyth,

Administrative Law, p.464; de Smith, Woolf & Jowell, paras 11-036 to 11-037; Allars, (2001) 18 Law inContext 12 at p.40; cf. Toy-Cronin, (2002) 9 Auckland University Law Review 850 at p.874. Similarly,standing to challenge a decision on the grounds of bias has been rejected where a party had no right tobe heard in respect of the original decision, despite the fact that the party was directly affected by thatdecision: Eves v Hambros Bank (Jersey) Ltd [1996] 1 W.L.R. 251 at 256, PC.

129 Bennett (1805) 10 Ves. 381 at 396; see also Parker (1874) L.R. 10 Ch.App. 96 at 125.130 P.D. Finn, ‘‘The Fiduciary Principle’’ in T.G. Youdan (ed.), Equity, Fiduciaries and Trusts

(Toronto: Carswell, 1989), p.1 at p.26; see also LAC Minerals Ltd v International Corona Resources Ltd(1989) 61 D.L.R. (4th) 14 at 47; Hodgkinson v Simms (1994) 117 D.L.R. (4th) 161 at 184–186; HughesAircraft Systems International v Airservices Australia (1997) 146 A.L.R. 1 at 81; Collinge [2005] 1 N.Z.L.R.847 at [60]; Wedderburn, (1985) 23 Osgoode Hall Law Journal 203 at p.221.


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obvious characteristic of relationships traditionally involving fiduciary duties.Indeed, some of the clearest examples of fiduciary relationships involve a veryclose relationship between fiduciary and principal: a director is not thought ofas ‘‘independent’’ from the company, nor is a solicitor generally thought of as‘‘independent’’ from her client.

In large part, the reason for this is that arbiters do not serve the samefunction as agents.131 In bias law, the paradigm situation is that of a judgedeciding impartially between two parties,132 and hence there is an expectationthat the judge be independent from both. That is not the paradigm in afiduciary relationship. However, fiduciary doctrine does require a form ofindependence and impartiality: the fundamental point of the fiduciary conflictdoctrine is to require that the fiduciary be free from interests which areinconsistent with the duties he owes to his principal. In other words, itis independence from competing interests that is the core concern of fiduciaryconflict doctrine, rather than independence from the principal. In terms thatare used in connection with bias law, fiduciary conflict doctrine requires thatthe fiduciary be free from ‘‘extraneous’’ influences or considerations.133 Thus,the trustee, who is required to act in the interests of the beneficiaries ofthe trust, must ensure that she remains independent in her role qua trusteefrom any personal interest which might interfere with her obligations tothe beneficiaries. Similarly, an agent acts on behalf of his principal so as toalter the principal’s relations with third parties,134 and the agent’s acts arethen ‘‘treated in certain respects as if they were acts of the principal’’.135 Itwould be perverse to suggest that the agent must remain independent andimpartial from his principal, but independence from personal interests wherethe agent enters transactions on behalf of his principal is not at all perverseand is precisely what fiduciary conflict doctrine demands of the agent. Itmakes similar demands in respect of solicitors and their clients, and withdirectors and the companies for which they work. In other words, fiduciaryconflict doctrine attempts to ensure that the fiduciary remains independentfrom interests which may compete for attention with those of the principal. Inthat respect it is protective of the fiduciary’s underlying non-fiduciary duties,just as bias law seeks to protect against extraneous influences which mightpossibly divert a decision-maker away from deciding the case properly onits merits. While the functions served by judges and fiduciaries differ, therationale of protecting the proper performance of those functions by seekingto eliminate inconsistent influences is common to both bias law and fiduciaryconflict doctrine.

131 Watt v McPherson (1877) 4 S.C. (4th Series) 601 at 611.132 D.E.C. Yale, ‘‘Iudex in Propria Causa: An Historical Excursus’’ [1974] C.L.J. 80 at p.80. Of course,

not all public law decision-makers operate within this paradigm; ‘‘[i]n many administrative contexts,there will be only two parties’’: Cane, Administrative Law, p.136.

133 Locabail [2000] Q.B. 451 at [25]; Roylance [2000] 1 A.C. 311 at 318.134 F.M.B. Reynolds, Bowstead & Reynolds on Agency, 18th edn (London: Sweet & Maxwell, 2006),

paras 1-001 and 1-004.135 Bowstead & Reynolds on Agency, para.1-005.



Remedial considerationsThe final area in which to consider the similarities or differences that mightexist between bias law and fiduciary conflict doctrine lies in the remedialconsiderations that arise in connection with each doctrine. In this context, thedifferences between the two doctrines appear to be somewhat more substantial.

The remedies for breach of the fiduciary conflict doctrine are well settled.Any resultant transaction can be rescinded, assuming third parties have notbecome involved without knowledge. In other words, the transaction isvoidable, rather than void.136 Furthermore, the principal is entitled to requestan account of any profits which the fiduciary has made as a result of thebreach,137 and there is authority to the effect that equitable compensation isavailable should the breach be proven to have caused any loss.138

The differences in the context of bias law are relatively obvious, although thedegree to which these are substantial differences requires some consideration.First, whereas a breach of fiduciary conflict doctrine renders transactionsvoidable, the orthodox view in English law is that bias renders void any decisionwhich the decision-maker reaches.139 However, it is possible to overstate thisdifference, for two reasons. First, even if a biased decision is void ab initio,it is now clear that its ‘‘voidness’’ is relative rather than absolute, so that thedecision becomes valid and effective in law once the law refuses to provide anyremedy to reflect its initial illegitimacy: ‘‘there is no incongruity in saying thatwhere there is no remedy the ‘void’ act must be taken as valid.’’140 This has ledto the argument that, in practical terms, the decision must be treated as validunless and until a remedy has been provided to reflect its invalidity and so thedecision should be regarded as voidable rather than void ab initio.141 For presentpurposes, it does not matter which of these two positions is taken—what isclear is that the concept of what it means to be ‘‘void’’ in administrativelaw is somewhat more flexible than its label would suggest. Even where adecision is ultra vires the decision-maker, a public law court still has discretionas to whether any relief ought to be granted to the claimant in respect of

136 Dover v Buck (1865) 5 Giff. 57 at 63; De Vigier v Inland Revenue Commissioners [1964] 2 All E.R.907 at 913, HL; Tito [1977] Ch. 106 at 225, 241; Hely-Hutchinson v Brayhead Ltd [1968] 1 Q.B. 549 at585, 589–590; Guinness [1990] 2 A.C. 663 at 697.

137 De Bussche (1878) 8 Ch.D. 286 at 304, 317; Boston Deep Sea Fishing (1888) 39 Ch.D. 339 at 12,15; Regal (Hastings) [1967] 2 A.C. 134; Industrial Development Consultants [1972] 1 W.L.R. 442 at 454.

138 Bentinck v Fenn (1887) 12 App. Cas. 652 at 661, 667, 669; Re Leeds & Hanley Theatres of VarietiesLtd [1902] 2 Ch. 809 at 823, 831–832; Swindle v Harrison [1997] 4 All E.R. 705; Warman InternationalLtd v Dwyer (1995) 182 C.L.R. 544 at 559; Breen v Williams (1996) 186 C.L.R. 71 at 113; Aequitas vAEFC [2001] NSWSC 14; (2001) 19 A.C.L.C. 1,006 at [428], [442]; Re MDA Investment ManagementLtd [2003] EWHC 2277 (Ch); [2005] B.C.C. 783 at [70]. See Conaglen, (2003) 119 L.Q.R. 246.

139 Wade & Forsyth, Administrative Law, pp.474–475.140 H.W.R. Wade, ‘‘Unlawful Administrative Action: Void or Voidable?: Part I’’ (1967) 83 L.Q.R.

499 at p.512; see also R. v Wicks [1998] A.C. 92 at 108–109; C. Forsyth, ‘‘‘The Metaphysic of Nullity’:Invalidity, Conceptual Reasoning and the Rule of Law’’ in C. Forsyth and I. Hare (eds), The GoldenMetwand and the Crooked Cord (Oxford: Clarendon Press, 1998), p.141 at p.142.

141 M. Taggart, ‘‘Rival Theories of Invalidity in Administrative Law: Some Practical and TheoreticalConsequences’’ in M. Taggart (ed.), Judicial Review of Administrative Action in the 1980s (Auckland:OUP, 1986), p.70. This approach has been followed in New Zealand: Martin v Ryan [1990] 2 N.Z.L.R.209.


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that decision.142 Secondly, the position in equity depends upon whether thefiduciary has acted pursuant to a legal or an equitable power. Where the poweris merely equitable ‘‘the difference between void and voidable is of little, if any,importance’’143 because an improper exercise of the power is simply ignoredin equity (and it would always have been ignored at law, because courts of lawdid not recognise equitable powers at all). Where the power exercised is legal,then the distinction between its exercise being void or voidable as a result ofa breach of fiduciary duty is potentially of more consequence, although eventhere the difference is not as great as is sometimes supposed. In Abacus Trustv Barr, Lightman J. sought to differentiate equitable notions of ‘‘void’’ and‘‘voidable’’ from public law:

‘‘By contrast with the position in public law proceedings in trustproceedings the legal classifications of void and voidable must be respected. . . and the court only has a discretion and can only have regard to thelapse of time between the act under challenge and the challenge whenthe challenged act is voidable and not void.’’144

With respect, this is not so for a number of reasons.145 First, it is possible forthe equitable doctrine of laches to justify a claimant being refused relief inequity, even where the action against which relief is sought was void in equity.Secondly, even if an act is void in equity, the consequences of the act remainat law unless and until reversed, and a third party may be able to prevent anyreversal of those consequences, for example because he is a bona fide purchaserof a legal interest in the assets concerned for value without notice of the equities.In other words, while remedies in administrative law may be more discretionarythan those available in private law, it should not be thought that equitableremedies always follow inexorably from breaches of equitable duties.146

A second difference affecting the practical outcome of claims brought onthe basis of bias law and fiduciary conflict doctrine respectively rests in theirdivergent approaches to standing. It is clear in fiduciary doctrine that thirdparties (those outside the fiduciary relationship) do not have standing to seekto have a voidable act set aside; even the Revenue is only able to intervenewhere a trustee’s action was void and so of no effect, as it remains validuntil set aside by the beneficiaries if it is merely voidable.147 Indeed, in‘‘private law there is, in general, no separation of standing from the elementsin a cause of action’’.148 In contrast, the law of standing applied in the

142 R. v Monopolies & Mergers Commission Ex p. Argyll Group Plc [1986] 1 W.L.R. 763 at 774–775,778; R. v Secretary of State for Social Services Ex p. Association of Metropolitan Authorities [1986] 1 W.L.R.1 at 14–15.

143 Cloutte v Storey [1911] 1 Ch. 18 at 30.144 Abacus Trust Co (Isle of Man) v Barr [2003] EWHC 114 (Ch); [2003] Ch. 409 at [30].145 R. Nolan and M. Conaglen ‘‘Trustee (In)Discretion’’ [2006] C.L.J. 15 at p.18.146 Equitable remedies are themselves discretionary, although this discretion appears more constrained

than that which courts have in the context of administrative law: see Snell’s Equity, para.12-04.147 Sieff v Fox [2005] EWHC 1312 (Ch); [2005] 1 W.L.R. 3811 at [78].148 Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998]

H.C.A. 49; (1998) 194 C.L.R. 247 at [43]; see also Truth About Motorways Pty Ltd v MacquarieInfrastructure Investment Management Ltd [2000] H.C.A. 11; (2000) 200 C.L.R. 591 at [92].



context of administrative law is now149 far less restrictive. It applies an initialbarrier to interdict applications brought by ‘‘busybodies, cranks, and othermischief-makers’’150 but, provided that initial barrier is passed, the merits ofthe application must then be considered.151 In this way, the issue of standing iseffectively folded into consideration of the question whether the applicant hasshown a sufficient case to warrant a remedy being granted.152 This does notmean that the question of standing in administrative law is now wholly fusedwith the merits.153 However, the rules of standing have undoubtedly beenrelaxed in administrative law,154 such that the question of standing is ‘‘nowfocus[ed] upon public policy rather than private interest’’,155 perhaps reflectingthe ‘‘polycentric’’ nature of public law issues,156 and so is broader than thatwhich is applied in the context of private law disputes.

Finally, a third remedial difference between bias law and fiduciary conflictdoctrine rests in the availability of pecuniary awards. Whereas these clearlyare available, and are very important, in the resolution of fiduciary conflictclaims, they are not made available in the context of bias law claims: a biaseddecision may be quashed (or recognised as void) but no monetary award willfollow.157 It is possible to strip from a public decision-maker any bribe whichhe or she may have received,158 but the basis for that monetary award is thedecision-maker’s breach of fiduciary duty in accepting the bribe, rather thanthe clear allegation of bias to which it would also give rise.

Conclusions

One can easily identify superficial linguistic similarities between fiduciaryconflict doctrine and bias law: words such as ‘‘impartiality’’, ‘‘independence’’,

149 For the old (more restrictive) law on standing, see Wade & Forsyth, Administrative Law,pp.679–690.

150 Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982]A.C. 617 at 653; Argyll Group [1986] 1 W.L.R. 763 at 773; R. v Felixstowe Justices Ex p. Leigh [1987] 1Q.B. 582 at 598.

151 Small Businesses [1982] A.C. 617 at 630, 656; Argyll Group [1986] 1 W.L.R. 763 at 773; R. vSecretary of State for Foreign and Commonwealth Affairs Ex p. World Development Movement Ltd [1995] 1W.L.R. 386 at 395. See generally Wade & Forsyth, Administrative Law, pp.690–700.

152 Craig, Administrative Law, p.729; T.R.S. Allan, Law, Liberty, and Justice (Oxford: OUP, 1993),p.232; P. Cane, ‘‘Statutes, Standing and Representation’’ [1990] P.L. 307 at p.307.

153 C. Harlow, ‘‘Gillick: A Comedy of Errors?’’ (1986) 49 M.L.R. 768 at p.769.154 World Development Movement [1995] 1 W.L.R. 386 at 395; Wade & Forsyth, Administrative Law,

p.693.155 Wade & Forsyth, Administrative Law, p.693; see also de Smith, Woolf & Jowell, para.2-004.156 L. Fuller, ‘‘The Forms and Limits of Adjudication’’ (1978) 92 Harvard Law Review 353 at

pp.394–395; A. Chayes, ‘‘The Role of Judges in Public Law Litigation’’ (1976) 89 Harvard Law Review1281 at pp.1289–1292. This is not to say that the problems associated with ‘‘polycentric’’ issues cannotalso arise in private law disputes: see Fuller, above, at pp.397–398; J.W.F. Allison, ‘‘Fuller’s Analysis ofPolycentric Disputes and the Limits of Adjudication’’ [1994] C.L.J. 367 at pp.371–373.

157 Assuming misfeasance in public office has not been proven (as to which, see W.V.H. Rogers,Winfield & Jolowicz on Tort, 17th edn (London: Sweet & Maxwell, 2006), paras 7-20 to 7-23). Even ifit has, the reason for a monetary award then is the public officer’s commission of a tort rather than themere existence of a bias claim being available in administrative law.

158 Reading v Att Gen [1951] A.C. 507; Attorney General (Hong Kong) v Reid [1994] 1 A.C. 324, PC.


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‘‘conflict of interest’’ and ‘‘bias’’ are used to describe each doctrine and areoften used interchangeably between the two doctrines. However, this articlehas sought to delve deeper than those similarities and to offer a more detailedreview of the law relating to bias and fiduciary conflict doctrine in order tocompare the two sets of doctrine and to evaluate the degree to which they may,or may not, be analogous. Having done that, it is suggested that the linguisticsimilarities do carry through into similar methodologies adopted within bothsets of doctrine, although the analogy between the two doctrines is slightly lessclear when one considers their respective rationales and the remedies madeavailable in respect of each.

Perhaps the most important of these apparent differences is the differencebetween the rationales of the two doctrines, as one would expect operationaldifferences to flow from differences in rationalisation. Under the ‘‘dignitarian’’view of bias law, the similarities with fiduciary conflict doctrine’s rationalisationare far from clear. However, it has been argued that the two doctrines can beseen to exhibit the same underlying rationale if one accepts an instrumentalistconceptualisation of bias law, as being fundamentally concerned with protectingdecision-makers from influences which make it more likely that they will reachinaccurate (or poor) decisions. In other words, it is possible to conceive of biaslaw as seeking to avoid extraneous influences which create a real possibilityof the decision-maker failing to perform properly his or her fundamental taskof reaching an accurate and justifiable decision. Similarly, fiduciary conflictdoctrine seeks to remove temptations which might cause fiduciaries not toperform their underlying tasks properly. Just as fiduciary conflict doctrine isdesigned to protect the proper performance of the non-fiduciary duties whicha fiduciary owes as a result of his fiduciary office, it is also possible to conceiveof bias law as protecting proper performance of a public decision-maker’sfunction from interference.

However, having raised the issue of rationale as an ‘‘important’’ issue whenconsidering the degree to which an analogy between bias law and fiduciaryconflict doctrine may or may not be exact, it is crucial also to bear in mind thepurpose for which the analogy is being drawn, as this will identify the degreeto which different aspects of the analogy may have particular importance. If thepurpose of the analogy is simply to draw attention to the fact that private lawand public law both contain doctrines which operate so as to achieve similareffects, then differences in the rationales for the existence of the doctrines are ofless importance than the methodologies deployed by each doctrine. However,the fact that two doctrines achieve similar effects does not indicate that thetwo actors to whom the doctrines apply—fiduciaries and public officials—aregenerally treated in the same way. Such a conclusion can only validly be reachedfollowing detailed examination of several doctrines applicable to each kindof actor.

In contrast, if the analogy is being used to provide a basis for the developmentof one or other of the doctrines, the rationales underpinning each set ofdoctrines become far more important than the mere fact that the doctrinesoperate in roughly similar ways, because developments in the way that doctrinesoperate may mean they no longer accurately reflect their underlying purposes.



Alterations in the underlying rationale of doctrines are far more fundamentalthan mere methodological or operational alterations, and ought only to be madeafter careful consideration and certainly not on the basis of merely superficial orabstract similarities. In particular, it becomes especially important to considerwhy a doctrine applies to a particular kind of actor as that context may indicatewhy a doctrine applies to that actor and yet would not be appropriate for adifferent kind of actor. It has not been possible in this article to develop acontextual comparison of fiduciaries and public officials, but the groundworkhas been laid as regards two doctrines—the fiduciary conflict principle and thedoctrine of bias—to show that such a comparison is a worthwhile endeavour.


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The Courts and Politics after theHuman Rights Act: A Comment

Tom Hickman*

Blackstone Chambers

Administrative decision-making; Constitutional law; EC law; Humanrights; Judicial decision-making; Politics and law

The past decade has been a significant period of constitutional reform.1 Itssignificance has led some commentators to suggest that the reforms—especiallythe Human Rights Act 1998 (HRA)—have affected, or should affect, aradical change in the role of domestic courts. One strain of argument suggeststhat instead of determining whether conduct on the part of the state violatesindividual rights, courts should engage in a debate with Parliament, governmentand wider society about the scope and content of those rights. In other words,the function of courts and judges is to propose answers to questions of legalprinciple instead of resolving them. This view would represent a fundamentalshift in the orthodox understanding of the constitutional role of courts. It is ofpractical importance to how judges decide cases and how politicians respondto them. It is also relevant to the issue of what role the courts should haveunder any future bill of rights, which is once again a hot topic. This papertherefore critically examines this view, taking as its focus the arguments putforward in its support in this journal by Professor Danny Nicol.2

What is dialogue theory?

The particular subject of this paper can be described as a form of dialogicconstitutional theory. The idea of ‘‘dialogic’’ constitutional theory is opaqueand capable of encompassing quite dissimilar approaches to constitutional law.3

* I am very grateful to Martin Loughlin and Alison Young for valuable comments on drafts of thispaper, as well as to participants in a constitutional theory seminar held at Oxford University on June12, 2007, at which some of the ideas in this paper were presented, for their helpful comments andprobing questions.

1 See V. Bogdanor. ‘‘Our New Constitution’’ (2004) 120 L.Q.R. 242 referring to 15 separatereforms with constitutional significance since the Labour Government took office in May 1997.

2 D. Nicol, ‘‘Law and Politics After the Human Rights Act’’ [2006] P.L. 722.3 See further T.R. Hickman, ‘‘Constitutional Dialogue, Constitutional Theories and the HRA

1998’’ [2005] P.L. 306. The label ‘‘dialogue’’ is not itself a particularly happy one since it suggests a


The Courts and Politics after the Human Rights Act: A Comment 85

The notion of dialogue simply rests on the insight that courts do not always,and do not simply, resolve questions of principle that litigants bring beforethem; and they interact with legislatures and governments in ways that areboth subtle and constructive. Broadly speaking, constitutional theories can bedescribed as ‘‘dialogic’’ when they emphasise the legitimacy and desirability ofcourts not resolving questions of principle but instead allowing those issues, forthe time being at least, to be considered by others.

One type of dialogic theory emphasises the legitimacy and desirability of thecourts avoiding resolving questions of principle, for example by determiningclaims on what might be termed ‘‘procedural’’ grounds, such as prematurity,lack of standing, or on the basis that an issue is or has become hypothetical.Alternatively, the courts might avoid resolving a question of principle bydeciding a case on the merits but on a narrow ground, for multiple overlappingreasons, or without endorsing any rule or principle with general application.In such cases, the courts leave the question of general principle undecidedand cast it back adrift on the sea of political controversy. Some commentatorsemphasise both the legitimacy and central importance of these techniques tothe proper exercise of the judicial function in constitutional cases. Thus, ithas been argued that these techniques (or ‘‘devices’’) allow courts to avoidquestions of principle until a greater degree of consensus has developed withinsociety on the issue in question. Courts can also avoid the possibility thatthey will have to compromise important principles by finding that they areoverridden by the pressing, but passing, needs of the moment. At the sametime the courts will take small steps in the direction of principled goals andin so doing nudge society towards a greater more principled consensus.4 Avariant on this view holds that the courts should seek to use these techniquesof avoidance actively to promote and encourage political debate in the hopethat it will be resolved by the legislature.5

In contrast, other theorists either leave out of account this aspect of judicialtechnique or argue against the use of techniques of avoidance save, perhaps, inexceptional circumstances. Such theories can be described as non-dialogic.6 Forexample, theories of rights absolutism claim that the function of constitutionalcourts should be to pronounce principles of fundamental justice and enforcethem as higher law. Avoiding doing so is a deviation from the proper functionof the courts.7

prolonged exchange, which is not a prerequisite for the use of the term in the context of public lawand theory. It is used here for want of a better term and because it is widely used and recognised.

4 A.M. Bickel, The Least Dangerous Branch—The Supreme Court at the Bar of Politics, 2nd edn (NewHaven: Yale University Press. Originally, Indianapolis: Bobbs-Merrill, 1962).

5 C.R. Sunstein, One Case at a Time—Judicial Minimalism on the Supreme Court (Cambridge MA:Harvard University Press, 1999). Contrast with the slightly different views expressed by Bickel in, A.M.Bickel,The Supreme Court and the Idea of Progress (New Haven: Yale University Press, 1978).

6 Hickman, ‘‘Constitutional Dialogue, Constitutional Theories and the HRA 1998’’ [2005] P.L. 306at pp.311–315.

7 A Dworkinian court of Herculean judges would seek to capture questions of fundamental principlefrom the arena of party politics and resolve them by discerning and applying fundamental principlesfrom the entire corpus of norms within the constitutional system: e.g. Taking Rights Seriously (newimpression 2000. Originally, London: Duckworths, 1977); ‘‘Rawls and the Law’’ (2004) 5 Fordham Law


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There is, however, another type of dialogic theory. This type of theorymaintains that the courts should not be regarded as resolving questions ofprinciple even when they address such issues head-on. The courts debate withsociety not when they avoid determining questions of principle, but whenthey address (and purport to decide) questions of principle. The function ofthe courts is to propose principled arguments for resolution by the politicalbranches. On this view, the courts are denied the function of finally resolvingquestions of legal principle and are assigned instead the role of participant ina debate about their scope and content. The important result is that the courtshave a weakened constitutional status. As Nicol states in his article advocatingsuch a view, it is, ‘‘not entirely fanciful to recast the Law Lords as a politicalfaction’’.8 Let us now examine the arguments in support of this type of theory.

Weak dialogic theory: problems

In the UK context, commentators advancing this approach have focused onthe power conferred on the courts by HRA s.4 to grant a non-bindingdeclaration that legislation is incompatible with rights protected by theEuropean Convention on Human Rights (the Convention). Professor TomCampbell has written9:

‘‘. . . it would be best if declarations of incompatibility were to beseen as routine and unproblematic. If moral disagreement over whatthe provisions of the ECHR should be taken to mean is accepted ascommonplace, because of the inherently controversial nature of the issueswhich call to be determined in making such interpretations, then thecourts should be regarded as having the right to make only provisional

Review 1387 at 1399–1404. See further Hickman, ‘‘Constitutional Dialogue, Constitutional Theoriesand the HRA 1998’’ [2005] P.L. 306 at pp.315–316.

8 Nicol, ‘‘Law and Politics After the Human Rights Act’’ [2006] P.L. 722 at p.743. For US andCanadian variants see M. Tushnet, Taking the Constitution Away From the Courts (New Jersey: PrincetonUniversity Press, 1999); C.P. Manfredi, Judicial Power and the Charter—Canada and the Paradox of LiberalConstitutionalism, 2nd edn (Oxford: OUP, 2001); K. Roach, The Supreme Court on Trial—JudicialActivism or Democratic Dialogue (Toronto: Irwin Law, 2001) (although Tushnet, Roach and Manfredidiffer in other important respects).

9 T. Campbell, ‘‘Incorporation through Interpretation’’ in T. Campbell, K.D. Ewing andA. Tomkins, eds, Sceptical Essays on Human Rights (Oxford: OUP, 2001). Also, Francesca Klughas written: ‘‘[Under the HRA] a dialogue is established between the courts, Parliament (with its newJoint Committee on Human Rights) and Government (whose Ministers have to make human rightsimpact statements when introducing new bills). More importantly, this tripartite approach creates thespace for any of us to join in the debate about where the line should be drawn when rights collide’’;‘‘The Human Rights Act—a ‘third way’ or ‘third wave’ Bill of Rights’’ [2001] E.H.R.L.R. 361 at370. ‘‘[The HRA] was not enacted so that the courts could have the final say in areas where there isno settled human rights answer . . . Parliament would be entitled to choose to protect its democraticmandate on an issue where the human rights case law is far from settled. Encouraging this kind of‘dialogue’ was one of the purposes of the HRA’’; ‘‘Judicial Deference Under the Human RightsAct 1998’’ [2003] E.H.R.L.R. 126 at 132. See also, R. Clayton, ‘‘Judicial deference and ‘democraticdialogue’: the legitimacy of judicial intervention under the Human Rights Act’’ [2004] P.L. 33. In, ‘‘ABill of Rights: do we need one or do we already have one?’’ [2007] P.L. 701, Klug may have changedher tune, arguing in defence of the HRA that the reality is declarations of incompatibility are acceptedby the government (p.708).



determinations of what it is that human rights asserted in the ECHRrequire us to do. These determinations may, with perfect propriety, bechallenged and overturned by elected governments after public debate.’’

A question that arises from such a focus is whether the courts’ dialogic functionis supposed to be limited to cases decided under the HRA. To the extent thatthese writers do take this view, their claim is that the courts put on a differenthat when they decide cases under the HRA from the hat they wear when theydecide all other cases in public law and private law. Such a view would beodd, to say the least, since it would require the courts to adopt a schizophrenicattitude to their own function. This is well illustrated by the case of Daly10

because the finding of a breach of the European Convention of Human Rights(the Convention) (and so HRA s.6) was coextensive with a finding of a breachof the common law. The House of Lords held that a policy requiring theabsence of prisoners during examination of privileged correspondence breachedthe common law right to confidentiality of privileged communications as wellas the right to respect for correspondence under Art.8 of the Convention.Lord Bingham stated that, ‘‘the common law and the convention yield thesame result’’.11 In so stating, his Lordship was not declaring a conclusion ofprinciple on the common law claim and a mere opinion as to the correctinterpretation of the Convention (to be resolved by some other branch ofthe state) on the HRA claim. Moreover, it would not be sensible to treatthe status of their Lordships’ conclusions on the Convention and the commonlaw any differently. Apart from anything else, if the decision was thought bequestionable from a moral or political point of view, such questions wouldbe equally applicable to the right found to exist under the Convention as thatfound to be part of the common law. Furthermore, the court approaches bothissues in precisely the same way. Any distinction between the court’s twoconclusions would therefore be arbitrary.

Proponents of this form of constitutional dialogue might seek to take refugefrom such criticism in the distinction between HRA s.4 and ss.6 and 3, andargue that the court should only be treated as functioning dialogically (inthe weak sense) when a declaration of incompatibility is made under s.4.Essentially, the argument would be that the courts wear a different hat onlywhen they grant a declaration of incompatibility (and Daly was not a s.4case because it concerned a policy, not an Act of Parliament). However,such an argument would replace one arbitrary distinction with another.Whether or not a Convention right is interfered with by primary legislationas opposed to secondary legislation, or policy, may simply be a matter ofchance or expediency. It bears no necessary connection to, for example, howcontroversial or complex the question in issue is. There is therefore no goodreason for thinking that the nature of a court’s decision that there has beena violation of the Convention is different just because the infringement is

10 R. (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2A.C. 532.

11 Daly [2001] UKHL 26; [2001] 2 A.C. 532 at [23].


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attributable to an Act of Parliament.12 The point is reinforced when oneconsiders that under the HRA, primary legislation includes certain Orders inCouncil as well as measures of the general synod of the Church of England13;whilst under the Scotland Act 1998 and the Northern Ireland Act 1998 thecourts can strike down primary legislation made by the Scottish Parliament andthe Northern Ireland Assembly.14 Properly understood, s.4 relates only to theremedy that the court grants when it finds a violation of the Convention: itcannot change the nature of its adjudication.

In his engaging and wide-ranging article, Nicol goes beyond the HRAand declarations of incompatibility and argues that we should accept atransformation of the judicial function more generally, having regard todevelopments in public law as a whole.15 Nicol summarises his argument inthe following terms:

‘‘Rather than attempt to integrate rights into the traditional culture oflaw, the HRA requires a profound shift in our very conception of thejudicial role. Judicial output needs to be reconceptualised as a contestable entity,wherein courts present their thoughtful opinions on rights, which Parliament cansubstitute with its own favoured interpretation, provided it is willing to pay thepolitical price.’’16

This is Nicol’s ‘‘alternative vision’’. Nicol’s argument is:

1. Over the past 50 years, and particularly in relation to the adjudicationof fundamental rights, there has been has been ‘‘considerableconvergence’’ between law and politics.17

2. The dominant law-bounding-politics conception of public lawchampioned by liberal writers, practitioners and judges—which Iwill describe as the liberal legalist view—does not represent either anaccurate or appealing account of the relationship between the courtsand the political branches.

12 To say that the nature of the adjudication is the same is not the same as saying the substance of theadjudication is the same. As a matter of substance, courts might reach a different result on the issueof Convention compatibility when reviewing primary legislation if they apply the principle suggestedin some cases that greater latitude should be afforded to primary legislation (e.g. International TransportRoth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158; [2003] 1 Q.B. 728at [83] (Laws L.J.); Marcic v Thames Water Utilities Ltd [2003] UKHL 66; [2004] 2 A.C. 42 at [71](Lord Hoffmann); such an approach is in itself highly questionable: A v Secretary of State for the HomeDepartment [2004] UKHL 56; [2005] 2 A.C. 68 at [42] (Lord Bingham)). Crucially, whether primarylegislation is in issue or not, the courts are engaged in resolving issues of Convention compatibility, notmaking a preliminary determination for resolution by politicians.

13 HRA s.21(1).14 Scotland Act 1998 s.29(2)(d); Northern Ireland Act 1998 s.6(2)(c).15 Although I do not pursue the point here, there is an obvious difficulty in the distinction between

when courts operate dialogically and when they do not being shifted to the elusive boundary betweenpublic and private law. For instance, there is no good reason why a court should be treated as resolvingwhat amounts to a breach of a person’s right to privacy in a claim between private individuals but notwhen the claim is against the government.

16 Nicol, ‘‘Law and Politics After the Human Rights Act’’ [2006] P.L. 722 at p.743 (emphasis inoriginal, footnote omitted).

17 Nicol, ‘‘Law and Politics After the Human Rights Act’’ [2006] P.L. 722 at p.736.



3. The HRA requires a shift in our conception of the judicial role, whichshould be understood as a political faction proposing to the governmentand Parliament the way that the judges consider fundamental rightsshould be interpreted.

Nicol’s first point is accurate as a broad proposition, but the degree of theconvergence is far less than either his arguments establish or than would berequired for us to accept that a profound reconceptualisation of the judicialrole is required. It is possible to have some sympathy with Nicol’s second pointbecause liberal legalist accounts of public law focus on the notion of politicsbeing subject to law at the expense of the fuzzy but fascinating border betweenlaw and politics. For instance, liberal legalists focus on the manner that courtscounteract the excesses of politicians but pay little attention to way that courts,Parliament and government interact in moving society towards more principledpositions.18 It nonetheless requires a giant leap from this position to Nicol’sthird proposition. It certainly does not follow that the imperfections in liberallegalist accounts of public law require our acceptance of Nicol’s ‘‘alternativevision’’.19 Although I will return briefly to Nicol’s first proposition, I wantfirst to address Nicol’s third proposition directly.

Nicol’s ‘‘alternative vision’’

Nicol’s claim is that his alternative vision presents a ‘‘more attractive balancebetween democracy and fundamental rights’’ than the dominant liberal legalistview.20 However, if we are to accept it, Nicol’s theory must not only providea more persuasive and appealing account of the judicial function in publiclaw cases, but also of all other possible accounts. The fact that liberal legalismprovides an imperfect model does not lead us to Nicol’s alternative vision bydefault. In examining the cogency of Nicol’s alternative vision, it is helpfulto distinguish between the effect of Nicol’s alternative vision on the waycases are decided (‘‘legal effects’’) and the effect on the way cases are treated(‘‘constitutional effects’’).

Legal effectsIf we look first to the legal implications of Nicol’s alternative vision, it is difficultto work out what Nicol considers them to be. Thus, Nicol claims that the courtsshould adopt an ‘‘uninhibited’’ use of declarations of incompatibility; but heseems to accept that courts’ interpretation of the interpretative obligation under

18 This point is developed in Hickman, ‘‘Constitutional Dialogue’’ [2005] P.L. 306; and T.R.Hickman, ‘‘In Defence of the Legal Constitution’’ (2005) 55 University of Toronto Law Journal 981.Despite the views set out in these articles (one of which Nicol cites), Nicol oddly characterises myown position as premised on a clear division of principle and policy, which is central to liberal legalistaccounts, but not my own: [2006] P.L. 722 at p.736. See also the more nuanced liberal legalist theoryof Trevor Allan, e.g. ‘‘Constitutional Dialogue and the Justification for Judicial Review’’ (2003) 23O.J.L.S. 563.

19 For some modest attempts to articulate an in-between position see Hickman, ‘‘ConstitutionalDialogue’’ [2005] P.L. 306 and (2005) 55 University of Toronto Law Journal 981.

20 Nicol, ‘‘Law and Politics After the Human Rights Act’’ [2006] P.L. 722 at p.723.


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HRA s.3 is correct.21 More puzzling and important is how Nicol thinks judgescommitted to his alternative vision should go about interpreting fundamentalrights. He argues that judges should be ‘‘fearless’’, ‘‘uncompromising’’ and‘‘outspoken’’22; and argues that, ‘‘[u]nder the HRA the judiciary shouldassume the role of honest orator’’23 and of ‘‘ideological partisans’’.24 However,it is not at all clear what this means. Nicol states that, ‘‘[t]o spell it out,there should be an exact coincidence between what judges say and whatthey think’’.25 But what does this mean in practice? On the one hand, Nicolmight mean that judges do not presently decide cases on the basis of whatthey think is the right outcome, but that they should do so. One ratherhopes, in fact, that judges do already decide cases on the basis of what theyconsider to be the right result. Moreover, I can think of no legal theoristwho claims that they should not do so. On the other hand, Nicol might bemaking a different point: that although judges decide cases on the basis ofwhat they think is the right result their reasons do not reflect the basis fortheir decision. It has, for instance, been argued by legal realists and othersthat although judges give reasons of principle and policy for their decisions,these merely serve to conceal the fact that the decisions have been reached onother grounds, such as the judge’s personal predisposition, political ideology,or on the basis of economic rationality. Nicol cannot be making this point,however, because it is the very opposite of his argument that the role of thejudge should be conceived as a privileged position to advance augments ofprinciple to Parliament, the government and wider society. Nicol does notsuggest that judges should use their office as a means of promoting, for instance,their own personal political or religious views, but for proposing arguments ofprinciple.

Another possibility is that Nicol is arguing that judges should ignore anydoubts and routinely come down against the government. Take for examplethe case of A v Secretary of State for the Home Department26 in which theHouse of Lords held that that there was a state of emergency threateningthe life of the nation which justified derogation from the Convention,but that the indefinite detention powers in the Anti-Terrorism Crime andSecurity Act 2001 enacted pursuant to the United Kingdom’s derogation werediscriminatory and disproportionate. The decision of the Committee on thenational security issue was unfortunate and probably wrong,27 and in the face

21 Nicol, ‘‘Law and Politics After the Human Rights Act’’ [2006] P.L. 722 at p.747, although hedisagrees with R. v A (No.2) on the House of Lords’ approach to s.3 (p.729). Importantly, it nowseems to be accepted that s.3 is the primary remedial tool and s.4 is ‘‘a measure of last resort’’ and‘‘exceptional’’: Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 A.C. 557 at [48] and [50] (LordSteyn).

22 Nicol, ‘‘Law and Politics After the Human Rights Act’’ [2006] P.L. 722 at pp.744–745, and 75023 Nicol, ‘‘Law and Politics After the Human Rights Act’’ [2006] P.L. 722 at p.745.24 Nicol, ‘‘Law and Politics After the Human Rights Act’’ [2006] P.L. 722 at p.75025 Nicol, ‘‘Law and Politics After the Human Rights Act’’ [2006] P.L. 722 at p.74626 [2004] UKHL 56; [2005] 2 A.C. 68.27 T.R. Hickman, ‘‘Between Human Rights and the Rule of Law: Indefinite Detention and the

Derogation Model of Constitutionalism’’ (2005) 68 M.L.R. 655 at pp.662–664.



of a robust dissent from Lord Hoffmann, three members of the Committeeadmitted to having doubts about the correctness of their conclusion.28 Thismay be a good example of their Lordships’ fears getting the better of them.Had they subscribed to Nicol’s alternative vision of how they should decidethe case, their Lordships, recognising that they were giving only a viewfor Parliament to accept or reject as it saw fit, would have come downfearlessly against the government. It seems to me, however, that it is not onlyunappealing but would be irresponsible for judges to act as ideological partisansin this way. There can be no justification for judges being institutionally orideologically predisposed to one party to a case. It would also be irresponsiblefor judges to ignore their doubts about whether they have reached the rightresult on the basis that it is open to Parliament to come back and changethe decision if it does not agree with it. Judges must strive to reach theright result irrespective of what Parliament or the government could or mightdo.29 Moreover, as a matter of practicalities there will rarely be parliamentaryor governmental time available to debate, still less correct, judicial decisions.It is therefore both unprincipled and unreal to suggest that judges shoulddecide cases on the basis that the matter will ultimately fall to be determinedelsewhere.

Nicol is however not alone in advocating such an approach. Kent Roach,one of the foremost advocates of a dialogic approach to the Canadian Charterof Fundamental Rights and Freedoms 1982, has developed a very similarargument about how judges should decide cases under the Canadian Charter.30

For Roach, the function and legitimacy of the Canadian Supreme Court isconceived in terms of its ability to ‘‘remind legislatures and society aboutanti-majoritarian and often unpopular principles’’ and to ‘‘enrich democraticdebate’’. Roach advocates ‘‘overenforcement of the Charter’’ because ‘‘it willresult in spirited and self-critical dialogue in which Parliament considers andresponds to Charter decisions’’.31 He therefore considers that judges shouldinterpret rights ‘‘generously, perhaps too generously’’32 and should ‘‘run therisk of being overly active’’.33 To my mind, Nicol and Roach’s approachessuffer from the same difficulties of principle in that they come dangerouslyclose to advocating judicial recklessness: they ask judges to run the risk ofbeing wrong on the basis that it will serve the collateral purpose of ‘‘enriching’’

28 Lord Bingham said he had ‘‘misgivings’’ ([2004] UKHL 56; [2005] 2 A.C. 68 at [26]), Lord Scottexpressed ‘‘very great doubt’’ (at [154]), Lord Rodger acknowledged ‘‘hesitation’’ (at [165]). ContrastLord Hope, ‘‘ample evidence’’ (at [118]), and Baroness Hale, ‘‘not . . . qualified or even inclined’’ tohold otherwise (at [226]).

29 See also Jeffrey Jowell’s view: ‘‘The courts are charged by Parliament [under the HRA] withdeliminating the boundaries of a rights-based democracy. In doing so, they ought not in any way beinfluenced by the fact that Parliament may in the end disregard their pronouncements. Nor should theyprefer the authority of Parliament or other bodies on the ground alone that they represent the popularwill, or are directly or indirectly accountable to the electorate.’’ J. Jowell, ‘‘Judicial deference: servility,civility or institutional capacity?’’ [2003] P.L. 592 at p.597.

30 See also Clayton, [2004] P.L. 33, p.33.31 See Roach, The Supreme Court on Trial—Judicial Activism or Democratic Dialogue, p.284.32 Roach, The Supreme Court on Trial—Judicial Activism or Democratic Dialogue, p.238.33 Roach, The Supreme Court on Trial—Judicial Activism or Democratic Dialogue, p.284.


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democratic debate. Judges and judgments may enrich democratic debate, butthey should not do so at the expense of getting their judgments right on pointsof principle.

Nicol also suggests that judges should refrain from acting prudentially,i.e. from avoiding resolving questions of principle (which the first type ofdialogic theory that we considered claims to be legitimate and desirable).34

It is important to appreciate that at least one ‘‘virtue’’ of judicial avoidancetechniques is that they avoid the courts otherwise approving a restrictiveinterpretation of individual rights. They give effect to the need for politicalcompromise without compromising principles themselves.35 A v Secretary ofState for the Home Department provides a good example. It would have beenmuch preferable for the House of Lords to have declined to decide whetherthere was a state of emergency at all, which was not necessary for its decision,instead of positively holding (Lord Hoffmann dissenting) that conditions inthe United Kingdom permitted derogation from the Convention.36 If theirLordships had real and justifiable doubts, this is how they should have giveneffect to them: not by deciding that there was an emergency, or that therewas no emergency, which was not necessary for their decision. It is all verywell for commentators to criticise judges for not grasping the nettle of difficultissues, but it is often better that they do not do so if the alternative wouldbe legitimising a compromise of principle. Nicol’s approach is only preferablefrom the perspective of protecting individual rights on the premise that thecourt will, having grasped the nettle, always decide against the government.We have seen that such an approach is open to serious criticism.

Other question marks hang over Nicol’s alternative vision. For instance,what is a court to do faced with a challenge to reply legislation enacted bythe government or Parliament? If the courts decide cases on the basis thatthey are only proposing arguments of principle to be resolved by others thenthey should, acting consistently in this role, refuse to review or scrutinise suchreplies on the basis that they represent the considered ‘‘democratic’’ view of

34 Nicol states that judges ‘‘could afford to be less inhibited by the dictates of ‘prudence’’’, [2006]P.L. 722 at pp.744–745. It also might be the case that Nicol considers that the courts should not applya doctrine of deference. This would not however distinguish his case from legal liberalism, which issceptical of doctrines of deference, and it would suffer from the same failing that he attributes to liberallegalism, namely, that it fails to account for the way this doctrine is used to ‘‘trim their ‘principled’commitment to human rights’’ (p.738). It would also be inconsistent with his criticism of R. v A (No.2)(considered below), in which Lord Hope, dissenting, invoked the doctrine to justify upholding therape shield law.

35 This was one of the insights and premises of A.M. Bickel’s great book, The Least DangerousBranch—The Supreme Court at the Bar of Politics; also Bickel, ‘‘The Supreme Court, 1960Term—Foreword: The Passive Virtues’’ (1960) 75 Harvard Law Review 40. Nicol overlooks thiswhen he refers to the fact that the courts give effect to the need to compromise principles in these waysas an example of judges doing what politicians do. He misses the point that it is not that judges do notmake compromises, but the way in which they do so, that sets their function apart from politicians. SeeHickman, ‘‘Constitutional Dialogue’’ [2005] P.L. 306 at pp.318–321.

36 Essentially this point is made by A. Tomkins, ‘‘Readings of A v Secretary of State for the HomeDepartment’’ [2005] P.L. 259: ‘‘Rather than guessing—which is what the Law Lords appear to havedone—what was to prevent them from ruling that they simply did not know, . . .After all, the court,as it turned out, did not need to resolve the question one way or the other. . .’’ (p.262).



government or Parliament made with the benefit of the courts’ analysis of thelegal position. Although Nicol’s dialogic theory is ‘‘robust’’ in the first instance,judicial resistance would melt away when its contribution to the democraticdebate has been made and Parliament enacts a considered response.37

Moreover, what is a judge to do when the issue involves a balance betweenthe rights of two individuals? This difficulty is brought out by Nicol’s criticismof the House of Lords’ judgment in R. v A (No.2)38 for doing, as far as Ican tell, precisely what his alternative vision prescribes, namely, standing upfor individual rights in the face of ‘‘broader societal concerns’’ relating to theunder-conviction of sexual assault crimes and the effect of cross-examinationon women complainants in rape trials.39 Nicol criticises the House of Lords’conclusion that the rights of accused to a fair trial prevail over those ofcomplainants. In an extraordinary vitriol, Nicol accuses the House of Lords ofbeing ‘‘cruel’’ and ‘‘blinded by its zeal . . . for base prejudice’’.40 Leaving thesecomments aside for a moment, the judgment would appear to be preciselyin line with Nicol’s alternative vision. Their Lordships, (1) made clear toParliament what in their view are the requirements of a fair trial, (2) camedown fearlessly in favour of the vulnerable minority with the most immediatecall on the courts for protection; namely, accused persons,41 and (3) put theball back in Parliament’s court.

The relevant part of the House of Lords’ reasoning actually consists of threestraightforward propositions. First, the House of Lords reaffirmed that the rightto a fair trial is absolute. Second, it held that depriving accused persons of theability to lead relevant evidence which is important to a ground on which theyintend to defend themselves would deprive them of a fair trial. Third, thatevidence of prior sexual history, such as that the complainant and the accusedwere in an ongoing relationship, could be relevant and important to the issueof consent in a trial for rape, which provides the accused with a defence to thecharge. It followed that where an accused could not lead such evidence as partof his defence the trial would be unfair.42 The House of Lords was unanimouson this point. As a matter of legal principle the House of Lords’ reasoning is

37 For further discussion of legislative replies and how they would be treated by courts adheringto a different type of dialogic approach see Hickman, ‘‘Constitutional Dialogue’’ [2005] P.L. 306 atpp.328–330.

38 [2001] UKHL 25; [2002] 1 A.C. 45.39 Nicol, ‘‘Law and Politics After the Human Rights Act’’ [2006] P.L. 722 at p.73940 Nicol, ‘‘Law and Politics After the Human Rights Act’’ [2006] P.L. 722 at p.739.41 Nicol reminds us that the victims of sexual assault crimes are overwhelmingly women, who are

‘‘the underprivileged majority of the population’’. Nicol perhaps implies that the House of Lordsought therefore to have prioritised the rights of women over those of accused persons. But despite theundeniable and troubling fact that rape trials can lead to a severe intrusion on the rights of complainants,accused persons standing trial are (despite the fact that they are overwhelmingly men and thereforenot in that capacity underprivileged), a segment of society with an even more immediate claim to theprotection of the courts.

42 The House of Lords also unanimously held that s.41 of the Youth Justice and Criminal EvidenceAct 1999 should be read so as to allow a fair trial, although differing on how this should be achievedand whether the statute itself violated Art.6 of the Convention as opposed to its effects in individualcases: see Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 A.C. 557 at [47] (Lord Steyn). Nicolalso disagrees with this aspect of the judgment, see [2006] P.L. 722 at p.747.


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not controversial, and Nicol does make clear which of the propositions it iswhich led to the House of Lords’ conclusion he disagrees with.

Constitutional effectsIf we now turn to the constitutional effects that would follow from acceptingNicol’s theory, we find them also puzzling. Nicol states that judicial decisionsshould be ‘‘given a contested rather than absolute status’’.43 The most obviousimplication of giving judicial decisions a contested status is that they do nothave to be followed. Precisely this approach has been suggested at a coupleof points in the constitutional history of the United States and finds its mostinfamous expression in the Governor of Arkansas’ refusal to implement the USSupreme Court’s decision in Brown v Board of Education.44 This led to the caseof Cooper v Aaron in which the Supreme Court articulated the requirement forstate officials and legislatures to follow its orders. Justice Frankfurter stated in aconcurring Opinion45:

‘‘Criticism need not be stilled. Active obstruction or defiance is barred.Our kind of society cannot endure if the controlling authority of theLaw as derived from the Constitution is not to be the tribunal speciallycharged with the duty of ascertaining and declaring what is ‘the supremeLaw of the Land.’ . . . The Constitution is not the formulation of themerely personal views of the members of this Court, nor can its authoritybe reduced to the claim that state officials are its controlling interpreters.’’

The equivalent position in the United Kingdom was set out by Lord Woolfin the no less constitutionally significant case of M v Home Office, holding thatthe Crown can be found to be in contempt of court. Lord Woolf stated thata finding of contempt is necessary to ‘‘vindicate the requirements of justice’’and to ‘‘ensure that the orders of the court are obeyed’’.46 Lord Bingham hasalso stated obiter that47:

‘‘Just as the courts must apply Acts of Parliament whether they approveof them or not, and give effect to lawful official decisions whether theyagree with them or not, so Parliament and the executive must respectjudicial decisions, whether they approve of them or not, unless or untilthey are set aside. . . . Only very rarely could it be appropriate for theexecutive to act in a way which threw doubt on a judicial decision.’’

These statements, which reach to the heart of the constitutional division ofpowers under the UK constitution, seem to me to be incompatible withNicol’s alternative vision.

43 Nicol, ‘‘Law and Politics After the Human Rights Act’’ [2006] P.L. 722 at p.744. See alsoCampbell, [2004] P.L. 33, p.99 ‘‘provisional determinations’’.

44 347 U.S. 483 (1954).45 358 U.S. 1 (1958) at 24–25. The quotation reference is President Andrew Jackson’s Message to

Congress of January 16, 1833, II Richardson, Messages and Papers of the Presidents (1896 edn), 610,623.

46 [1994] 1 A.C. 377 at 425.47 Re McFarland [2004] UKHL 17; [2004] 1 WLR 1289 at [7].



Of course, it has always been open to Parliament to overrule a decision ofthe courts, and this power remains. Ideally, decisions of courts should not beoverruled on the ground that the courts got the law wrong, but because theeffect of the law conflicts with the requirements of expediency or moral views.But the important point is that government and Parliament should not treatcourt decisions as if they are contestable opinions to be disregarded, overruledor evaded wherever the government or Parliament would have applied orinterpreted the law differently.48 Likewise, as we have seen, judges themselvesshould not decide cases on the basis that they are making a provisionaldetermination of what legal principles require.

Although it is not possible to consider the matter here in any detail, it mustalso be doubtful whether parliamentarians and government ministers wouldeither want to engage in a debate with the courts or would do so particularlywell; certainly not on a regular basis. The reaction of government ministersto adverse judicial decisions is rarely charitable and, moreover, frequently somisrepresents the judgment that one hopes they have not had time to readit and have relied instead on a brief from a political adviser. The reaction ofDavid Blunkett when Home Secretary to the judgment of Collins J. in Q vSecretary of State for the Home Department,49 in which he held that governmentaldecisions had the effect of unlawfully leaving asylum seekers destitute, is, whilstnot representative, possibly expressive of what many Ministers would like tosay 50:

‘‘Frankly, I’m personally fed up with having to deal with a situation whereparliament debates issues and the judges then overturn them, . . .I don’t want any mixed messages going out so I am making it absolutelyclear today that we don’t accept what Justice Collins has said.We will seek to overturn it. We will continue operating a policy whichwe think is perfectly reasonable and fair.’’

It cannot be desirable for the government to be given licence to respondroutinely in such a knee-jerk, defensive and unreasoned way. Moreover, theidea that politicians would engage in a calm, reflective and impartial debateabout the subject of legal cases on controversial topics is unreal. Nicol’s

48 Contrast however the statement made to the House of Commons by the Financial Secretary to theTreasury, Mr MacDermot MP, on the second reading of the War Damages Bill following the decisionof the House of Lords in Burmah Oil v Lord Advocate [1965] A.C. 75 (considered below), suggesting thatthe House of Lords got the law wrong: ‘‘The object of this Bill is to restore the common law of Englandand the law of Scotland to the position which was generally thought to exist before the decision andto provide that about 12 cases now pending . . . before the court are disposed of on the basis of thelaw as it has always been thought to be . . .’’. (Hansard, HC Vol. 705, col. 1091 (February 3, 1965);referred to in C. Harlow and R. Rawlings, Law and Administration, 2nd edn (London: Butterworths1997), p.50.

49 [2003] EWHC 195; (2003) 100(15) L.S.G. 26, affirmed [2003] EWCA Civ 364; [2004] Q.B. 36.50 ‘‘Blunkett hits out at power of the courts’’, Guardian, February 21, 2003. Mr Blunkett was speaking

as Home Secretary. As for the courts engaging in a debate with the wider public, the difficulties ofadequate engagement are even greater. As the Department of Constitutional Affairs Review of theImplementation of the Human Rights Act, July 2006, found: ‘‘The Human Rights Act has been widelymisunderstood by the public, and has sometimes been misapplied in a number of settings’’ and ‘‘anumber of damaging myths have taken route in the popular imagination’’ (Executive Summary).


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alternative vision would not only require a transformation of the judicial rolebut also a transformation in the conduct of politics.

Judges as politicians

Nicol buttresses his argument for his alternative vision by arguing that overthe past 50 years there has been such an erosion of the distinction betweenwhat judges do and what politicians do that judges have been ‘‘recast’’ as a‘‘political faction’’.51 In my view, Nicol greatly overestimates the degree towhich judges have moved into political territory.52 Clearly, the justiciabilityof human rights norms has made many more broadly-framed moral rightssubject to interpretation and enforcement by the courts. But let us not forgetthat very many already were. There is no more broadly framed legal principlethat Lord Atkin’s ‘‘neighbour principle’’, for example, which was establishedin 1932.53 And almost as broad, in the field of public law, is the right ofnatural justice, which we have on highest authority to be no more than‘‘fair play writ large and judicially’’54 and ‘‘fair play in action’’.55 Applyingbroadly-framed moral principles as law is an established part of the judicialfunction.

Nicol relies on a couple of interesting arguments to support his conclusionthat judges have become quasi-legislators. He suggests that the enforcementof human rights norms leads to the use of obiter statements which he saysallows courts to transmit a broader message than required to determine the casebefore them. He points to the fact that in the Pro Life Alliance case56 several oftheir Lordships expressed a view on whether a taste and decency requirementfor transmission of party political television broadcasts was compatible withArt.10 of the Convention, despite the fact that the issue for the court wasonly whether the requirement had been properly applied by the BBC.57

The use of judicial statements that go beyond the issues in the case, andoften also the argument before the court, is a dialogic technique in thesense that it is a technique of judging that does not resolve any issue ofprinciple. It signals to public officials the preliminary view of the judiciaryas to what the law requires on a matter that is unclear or unsettled and itguides their future conduct, not least in implementing the decision of thecourt. It would, however, be necessary to see far more evidence before onecould accept that judges stray beyond the confines of the case more than

51 Nicol, ‘‘Law and Politics After the Human Rights Act’’ [2006] P.L. 722 at p.74352 See generally on the political role of judges in English law, J.A.G. Griffith, The Politics of the

Judiciary, 5th edn (Fontana Press, 1997, first published 1977); J. Bell, Policy Arguments in Judicial Decisions(Oxford: Clarendon, 1983); R. Stevens, The House of Lords as a Judicial Body (London: Weidenfeld andNicolson, 1979).

53 Donoghue v Stevenson [1932] A.C. 532.54 Furnell v Whangarei High Schools Board [1973] A.C. 660 at 679 (Lord Morris)55 Ridge v Baldwin [1963] 1 Q.B. 539 at 578 (Harman L.J.; approved on numerous occasions).56 R. (on the application of ProLife Alliance) v BBC [2003] UKHL 23; [2004] 1 A.C. 185.57 Nicol, ‘‘Law and Politics After the Human Rights Act’’ [2006] P.L. 722 at p.726: ‘‘The majority

of the Appellate Committee clearly signalled their response to the question of general principle despitethe fact that it lay outside the ambit of the appeal.’’



they otherwise do (or have previously done) when they are enforcing humanrights norms. This is, after all, also an established judicial technique. TakeDonoghue v Stevenson again. The issue in that case was simply whether underScots law a manufacturer could owe a duty to a purchaser of its product,to whom it caused personal injury, in circumstances where there was nopossibility of intermediate inspection of the product. It was also a questionwith very wide significance for social policy and public health. Both thesepoints were expressly recognised by Lord Atkin at the outset of his judgment,58

but he nonetheless went on to set out the responsibilities of individuals andcompanies to each other in the broadest possible terms that went many milesbeyond the narrow issue in the case.59 Another example, closer to the ProLife Alliance case perhaps, can be found in Burmah Oil v Lord Advocate.60

The issue was whether compensation must be paid where private propertyis destroyed to prevent it falling into the hands of an advancing enemy.61

Lords Reid and Pearce ventured beyond the issue (Lord Pearce forthrightly)in an attempt to pour cold water on the pursuers’ claim, and perhaps signalto Parliament that the implications of the judgment might not be too costly(in vain as it turned out), by indicating that the value of the propertyshould not be calculated on the basis of its peace time value (as claimed)but on the basis of its chance of ‘‘survival and restoration’’ if taken by theenemy.62

58 Lord Atkin put it thus: ‘‘My Lords, the sole question for determination in this case is legal: Do theaverments made by the pursuer in her pleading, if true, disclose a cause of action? I need not restatethe particular facts. The question is whether the manufacturer of an article of drink sold by him to adistributor, in circumstances which prevent the distributor or the ultimate purchaser or consumer fromdiscovering by inspection any defect, is under any legal duty to the ultimate purchaser or consumer totake reasonable care that the article is free from defect likely to cause injury to health. I do not think amore important problem has occupied your Lordships in your judicial capacity: important both becauseof its bearing on public health and because of the practical test which it applies to the system underwhich it arises. The case has to be determined in accordance with Scots law; but it has been a matterof agreement between the experienced counsel who argued this case, and it appears to be the basis ofthe judgments of the learned judges of the Court of Session, that for the purposes of determining thisproblem the laws of Scotland and of England are the same.’’ Donoghue v Stevenson [1932] A.C. 532 at578–579.

59 ‘‘The rule that you are to love your neighbour becomes in law, you must not injure yourneighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You musttake reasonable care to avoid acts or omissions which you can reasonably foresee would be likely toinjure your neighbour. Who, then, in law is my neighbour? The answer seems to be—persons whoare so closely and directly affected by my act that I ought reasonably to have them in contemplation asbeing so affected when I am directing my mind to the acts or omissions which are called in question.’’Donoghue v Stevenson [1932] A.C. 532 at 581.

60 [1965] A.C. 75.61 Nicol also argues that the courts ‘‘have established’’ cardinal principles of public law simply because

they are common ground between the parties. Nicol here points to an interesting an unexplored featureof common law litigation, namely, the effect of concessions made in one case on the future developmentof the law, as well as the appropriateness of judges commenting on concessions when they have notheard argument on the point (see, e.g. counsel’s concession in Donoghue v Stevenson [1932] A.C. 532).Nothing is, however, ‘‘established’’ in law by concession and any judicial approval of a concessionmade by a party merely serves to indicate to practitioners the likely outcome of future litigation on thepoint. The point also goes nowhere for Nicol’s argument, because it does not support the argumentthat judges are more engaged in legislative tasks: points are not conceded by judges.

62 [1965] A.C. 75 at 113 (Lord Reid) and 163 (Lord Pearce).


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Whilst there are undoubtedly a number of examples of the courts strayinginto unnecessary territory to provide guidance in the human rights context,63

there are also contrary examples. Notably, in David Shayler’s appeal froma ruling on his prosecution under the Official Secrets Act 1989, the Houseof Lords refused the request made by intervening newspaper and televisionorganisations for the Committee to provide guidance on the scope of theright to journalistic freedom of expression, despite hearing argument on thepoint.64 On reading the cases, it seems to me that judgments given under theHRA reveal the courts applying the traditional common law methods andtechniques.

Nicol also argues that judges today travel far beyond the words used byParliament to defend individual rights when interpreting statutes. However, itis wrong to suggest that this has not long been an established characteristic ofthe court’s approach to statutes when important personal interests are at stake,albeit less frequently resorted to.65 Courts have long said that they will supplythe ‘‘omission of the legislature’’ to protect rights such as natural justice66; andwill refuse to follow the clear implication of a statute where it would deny afundamental right,67 or authorise a tort.68 Dicey described the approach of thecourts in such cases as legislative: the courts limit or extend a statute in a processthat departs from the interpretation that Parliament would have given to theprovision had it been called upon to decide the case.69 We should also recallthat the most radical example of the courts departing from the plain meaningof a statutory provision occurred in Anisminic, a case decided in 1968.70

There can be no doubt, of course, that HRA s.3 permits the courts togo further than they have done at common law. Importantly, however, thecourts have treated their function under s.3 as essentially an extension oftheir approach at common law, and that s.3 ‘‘demarcates and preserves’’ the‘‘constitutional boundary’’ between the courts and Parliament.71 The caseswhere the judges have pushed their interpretive power furthest under theHRA are those concerning access to justice: but this is also the case at common

63 Perhaps most extraordinary are the comments made—without hearing argument on the point—byLord Hope and Lord Brown on discrimination and racial profiling in the exercise of stop and searchpowers in R. (on the application of Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12;[2006] 2 W.L.R. 537 at [40]–[47] and [79]–[92].

64 R. v Shayler [2002] UKHL 11; [2003] 1 A.C. 247: ‘‘The House received and heard interestingsubmissions on behalf of the Newspaper Society, nine newspapers and two television channels. But thisappeal calls for decision of no issue directly affecting the media and I think it would be undesirable toattempt to give guidance in the context of this appeal’’ at [30], per Lord Bingham, and [117], per LordHutton.

65 In part because fewer ‘‘rights’’ were recognised and justiciable.66 Cooper v Wandsworth Board of Works (1863) 14 C.B. (N.S.) 180.67 Adams v Naylor [1944] K.B. 75068 Morris v Beardmore [1981] A.C. 446.69 Introduction to the Study of the Law of the Constitution, 10th edn (London: Macmillan, 1959),

pp.413–414 and Lectures in the Relation between Law and Public Opinion in England During the NineteenthCentury, 2nd edn (London: Macmillan, 1914), pp.488, 490.

70 Anisminic v Foreign Compensation Commission [1969] 2 A.C. 147.71 Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 A.C. 557 at [33] (Lord Nicholls); R. v

Secretary of State for the Home Department Ex p. Simms [2000] 2 A.C. 115 at 130 (Lord Hoffmann).



law.72 Section 3 has not therefore affected a transformation in the nature ofthe judicial function when it comes to interpreting statutes. Judges have notaccepted a role as legislators or politicians.

Lastly, Nicol suggests that the courts are today engaged in adjudicatingon more controversial issues than in the past.73 This may be the case, but areference to Wednesbury74 is very far from establishing it. It is perhaps significantthat whereas Parliament overruled two of the most constitutionally significantcases of the 20th century—Burmah Oil, by the War Damages Act 1965 andAnisminic, by the Foreign Compensation Act 1969,75 —Parliament has notyet seen fit to overrule a single decision under the HRA. There are a stringof other public law cases with significant political implications in the sameera.76 Nor should we forget that the extension of the courts’ jurisdiction inthe decades leading up to the creation of judicial review procedure was itself ahighly political issue.77 And perhaps the most controversial cases of all time areyet older: such as Prohibitions del Roy,78 and the Case of Proclamations.79

On the other side, it is also easy to overestimate the politically contestednature of human rights norms. There is in fact a very substantial degree ofconsensus about their scope and meaning within the law. For instance, it isperfectly clear that a confession extracted by the administration of electricshocks has been obtained by torture and, to take an everyday example, that thesearch of a person’s home amounts to an invasion of their right to privacy whichmust be justified. The arguments for treating judicial decisions as provisionaland contestable can have no application in such cases.

Therefore although it is undeniable that the subject-matter of judicialdecisions is today very different from what it was even 20 years ago, we

72 R. v A (No.2) [2002] 1 A.C. 46; R. v Offen [2001] 1 W.L.R. 253 (s.3); Anisminic v ForeignCompensation Commission [1969] 2 A.C. 147; Adams v Naylor [1944] K.B. 750 (common law). Cf.Nicol, ‘‘Statutory interpretation and human rights after Anderson’’ [2004] P.L. 274.

73 Nicol refers to ‘‘judicial review’’ being ‘‘sporadic and peripheral in the 1940s and 1950s’’. But ofcourse, judicial review did not exist until 1977. There was no procedure for bringing ‘‘public law’’challenges and restricted scope for doing so until the implications of the House of Lords’ ruling inAnisminic had settled in. It is not therefore clear what sort of claims Nicol has in mind. (The juridicalconcept of public law was also introduced into English law in the 1970s, although the term has beenused here to describe challenges against the government, including, e.g. tort claims, for convenience.)

74 Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 K.B. 223.75 Burmah Oil v Lord Advocate [1965] A.C. 75; Anisminic v Foreign Compensation Commission [1969] 2

W.L.R. 163. See the discussion in Harlow and Rawlings, Law and Administration, pp.47–58.76 A few that spring to mind: East Suffolk Rivers Catchment Board v Kent [1941] A.C. 74; Duncan v

Cammell Laird Co Ltd [1942] A.C. 624; Liversidge v Anderson [1942] 2 A.C. 206; Adams v Naylor [1946]A.C. 543; Ridge v Baldwin [1964] A.C. 40;Padfield v Ministry of Agriculture [1968] A.C. 997; Conway vRimmer [1968] A.C. 910. An historical study (or legal historian) would probably identify many others.

77 See, e.g. H.W.R. Wade and C.F. Forsyth, Administrative Law, 8th edn (Oxford: OUP, 2000),p.898 considering the Franks Committee Report, Cmd 218, 1957. It is worth also recalling thecomments of Lord Reid in Ridge v Baldwin [1964] A.C. 40 at 72–73: ‘‘We do not have a developedsystem of administrative law—perhaps because until fairly recently we did not need it. So it is notsurprising that in dealing with new types of cases the courts have had to grope for solutions, and havefound that old powers, rules and procedure are largely inapplicable to cases which they were neverdesigned or intended to deal with.’’

78 (1607) 12 Co. Rep. 63.79 (1611) 12 Co. Rep. 74l.


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should be cautious before accepting that the subject-matter is considerablymore ‘‘political’’ or ‘‘contestable’’ than cases that were decided by the courtsin the past. Furthermore, it is insufficient for weak dialogians to argue onlythat courts have to adjudicate upon controversial issues more regularly than inthe past, because that would establish no more than that courts today moreregularly perform a judicial function that they have always performed. Inany event, whether or not courts are dealing with more politically sensitivesubject-matter these days, they should still go about deciding cases in the sameway, and the government, Parliament and the public should continue to acceptthat the courts are the final arbiters on what the law requires.

Conclusion

In conclusion, the arguments for a radical reconceptualisation of the functionof the courts are not, at least as presently articulated, at all persuasive. In an ageof rights it falls to judges to resolve disputes of legal principle, and they shoulddecide cases on this basis. A judge’s interpretation of the law should not differbecause there is a prospect of Parliament or the government correcting his orher mistakes. At the risk of oversimplification, the short point is this: it is not thefunction of courts to advance argument but to hear it. The mirror image is thatgovernment and Parliament should not treat judicial decisions as contestable orprovisional, however politically inconvenient or morally debatable they mayconsider them to be. Parliament should accept the courts’ interpretation of lawsubject only to its power to overrule the courts where the law needs to bechanged. There is a place for constitutional dialogue but it is not to be foundin recasting the courts as a privileged political pressure group.


The Pervasiveness of Polycentricity 101

The Pervasiveness of Polycentricity

Jeff A. King*

Keble College, University of Oxford

Judicial decision-making; Jurisprudence; Justiciability; Statutoryinterpretation; Tax; United States

Lon Fuller’s claim that polycentric disputes are unsuitable for adjudicationhas had a powerful impact on the English law of justiciability. Fuller con-ceded, as many have noted, that polycentricity is a matter of degree and thatcounter-examples can be admitted without collapsing the concept. But thisarticle suggests that not only do counter-examples exist, but that the law isrife with them, and that the existence of such examples forces us to refineor reject Fuller’s doctrine. The issue is important because the argument thatpolycentric issues are non-justiciable is most frequently raised in the context ofresource allocation disputes. Such disputes frequently involve claims to health,education, social security or housing resources. As such, they often concerninternationally recognised human rights claims of the highest order. But manysay that social rights should not be legal rights because they would require judgesto adjudicate polycentric disputes. This article suggests we need to reconsiderthis objection. It shows how polycentricity is a pervasive feature of adjudica-tion, discussing a number of examples but choosing to focus principally on anarea that is infrequently discussed in public law—the law of taxation. It is shownthat tax law is heavily polycentric but that there is an accepted role for courtsin protecting citizens against the spectre of unfettered public power. Demon-strating the pervasiveness of polycentricity does not alone make the case forrejecting the wisdom of Fuller’s doctrine, a good deal of which appears sound.But it helps illuminate both how the concept is invoked selectively, and howit cannot without further refinement be relied upon to justify judicial restraint.

Fuller’s concept of polycentricity and the limits of adjudication

According to Lon Fuller, a polycentric problem is one that comprises a largeand complicated web of interdependent relationships, such that a change to

* Research Fellow and Tutor in Law. The author is grateful to Timothy Endicott, J.W.F. Allison,Judith Freedman, Nicholas Bamforth, Paul Craig, Kirsty McLean, Jan van Zyl Smit, Alicia HinarejosParga, Vanessa Mak and the Editor of Public Law for helpful comments on earlier drafts. I am particularlygrateful to Graham Gee for his exceptional contribution.


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one factor produces an incalculable series of changes to other factors.1 Suchrelationships have ‘‘interacting centres’’—the points where the strands of theweb intersect—where different parties interact with each other by means ofnegotiation, exchange, or in other ways.2 A problem having a profusion ofsuch ‘‘interacting centres’’ is one that is ‘‘many-centred’’, hence, polycentric.Fuller used the now well-known image of a spider’s web to convey the ideaof how pulling on one string would distribute new and complicated tensionsthroughout all of the other strands of the web.

The perfect example of a polycentric task is how to set an appropriate price orwage. Setting the price of a commodity or the wage of an employee can affectsupply or demand for the commodity or employment, which in turn affects amultitude of other costs and relationships.3 And each of the separate consequen-tial effects of the price determination (for example, lay off, decreased demand forthe commodity), in turn affects networks of relationships associated with thatfactor (for example, production, transport, insurance, advertising), and so on.4

Fuller derived the idea from natural scientist cum philosopher MichaelPolanyi, who used it to explain why he believed the principle of self-co-ordination in markets is a necessary antidote to the insoluble problems of centralplanning.5 Polanyi wrote that in the free market, ‘‘[i]ndividuals . . . evaluate bytheir independent mutual adjustments the polycentric task of optimum alloca-tion of resources and distribution of products’’.6 Polanyi’s concern demonstratesthat polycentric tasks pose difficulties for managers and administrative decision-makers as well. Polanyi’s work was essentially libertarian in nature.

For his part, Fuller aimed to show what kinds of social tasks are best assignedto courts, and those inherently unsuited for adjudicative disposition and thusbest left to legislatures or the market.7 In so doing, he developed a theory ofadjudication:

‘‘This whole analysis [of the optimum and essential conditions for thefunctioning of adjudication] will derive from one simple proposition,namely, that the distinguishing characteristic of adjudication lies in thefact that it confers on the affected party a peculiar form of participationin the decision, that of presenting proofs and reasoned arguments for adecision in his favor . . . Whatever destroys that participation destroys theintegrity of adjudication itself.’’8

1 L. Fuller, ‘‘The Forms and Limits of Adjudication’’ (1978–1979) 92 Harvard Law Review 353. Thepaper was a draft published posthumously. As explained on the editor’s opening note on the paper, thefirst draft was written in 1957, and revised in 1959 and 1961. Fuller, as with Polanyi before him, nevergave a succinct definition of what a polycentric task was.

2 Fuller, ‘‘The Forms and Limits of Adjudication’’ (1978–1979) 92 Harvard Law Review 353 at p.397.3 Fuller, ‘‘The Forms and Limits of Adjudication’’ (1978–1979) 92 Harvard Law Review 353 at p.394.4 Fuller, ‘‘The Forms and Limits of Adjudication’’ (1978–1979) 92 Harvard Law Review 353 at

pp.394–395 for other examples.5 M. Polanyi, The Logic of Liberty: Reflections and Rejoinders (Routledge & Kegan Paul, 1951) especially

pp.170 et seq.6 Polanyi, The Logic of Liberty: Reflections and Rejoinders (1951) p.179.7 Fuller, The Forms and Limits of Adjudication’’ (1978–1979) 92 Harvard Law Review 353 at p.354.8 Fuller, The Forms and Limits of Adjudication’’ (1978–1979) 92 Harvard Law Review 353 at p.364.



Thus for Fuller the ‘‘essence’’ of adjudication is the mode of participation itaccords to the affected party.9

Issues of participation are intrinsically connected with issues of complexity.Indeed, many feel that polycentricity is foremost about complex subject-matter.10

But something can be complex without being polycentric. Scientificquestions arising in court can be enormously complex without beingpolycentric in any way; the answer may affect one person only. Butpolycentric issues are often ‘‘complex’’ in the sense of ‘‘understood withgreat difficulty’’, because it is difficult to know who will be affected bya change in one relationship in the interlocking scheme. Therefore, it isdifficult to know even who should be called to the table to discuss (orallowed to intervene in the proceedings), since the network of cause andeffect relationships is scarcely comprehended.11 Of course, this issue appliesno less to legislative and bureaucratic resolution of polycentric issues, whichwas Polanyi’s concern, though often forgot in legal discussions. The greatdifficulties faced by administrative decision-makers who take decisions basedon limited information and under difficult time constraints formed the centralsubject of Herbert Simon’s work on what he termed ‘bounded rationality’.12

In such situations, decision-makers ‘‘satisfice’’ rather than ‘‘optimize’’.13

Fuller believed that the adjudication of polycentric disputes would (1) giverise to unintended consequences, (2) encourage judges to try unorthodoxsolutions such as consultations of non-represented parties, guessing at facts etc.,and (3) prompt the judge to recast the problem in a judicially manageableform.14 Unintended consequences arise to an unacceptable level chiefly becausethe adversarial adjudicative process often limits the information considered bythe court to that provided by represented parties. Abram Chayes described thisadversarial structure as ‘‘bipolar’’, and as an ‘‘organized contest between twoindividuals. . ., diametrically opposed, to be decided on a winner-takes-all-basis’’.15 Chayes argued that it was a view of adjudication that failed to accountfor the emergent American public law litigation paradigm.

Fuller felt that polycentric problems ought to be solved by managerialdirection and contract (reciprocity).16 He does not elaborate much on the

9 Fuller, ‘‘The Forms and Limits of Adjudication’’ (1978–1979) 92 Harvard Law Review 353 at p.365;see also O.M. Fiss, ‘‘The Supreme Court 1978 Term: Foreword: The Forms of Justice’’ (1978) 93Harvard Law Review 1 at p.40 (calling participation the ‘‘core’’ of Fuller’s theory).

10 See, e.g. the Supreme Court of Canada’s decision in M v H [1999] 2 S.C.R. 3 at [310](Bastarrache J.).

11 I am indebted to J.W.F. Allison for this point.12 H. Simon, Administrative Behavior: A Study of Decision-Making Processes in Administrative Organization,

(1976).13 Simon, Administrative Behavior: A Study of Decision-Making Processes in Administrative Organization,

3rd edn (Collier Macmillan, 1976, pp.xxviii–xxxi, 38–41, 80–81, 240–244.14 Simon, Administrative Behavior: A Study of Decision-Making Processes in Administrative Organization,

(1976), p.401.15 A. Chayes, ‘‘The Role of the Judge in Public Law Litigation’’ (1976) 89 Harvard Law Review 1281

at p.1282.16 Fuller, ‘‘The Forms and Limits of Adjudication’’ (1978–1979) 92 Harvard Law Review 353 at p.398.


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former, though he does give the example of a baseball manager who handlesproblems of enormous mathematical complexity through ‘‘a good deal ofintuition’’.17 However, true to Polanyi’s concern, he believed polycentricissues would often work themselves out through negotiation and mutual self-adjustment in contract,18 within which he includes parliamentary bargainingand trade-offs.19 Although he sees this role for politics, he is also clear thatvoting by majority rule cannot resolve polycentric problems.20

Fuller’s idea in context

Fuller was a key contributor to the legal process school of jurisprudence inthe post-World War II United States, one which influenced a generationof American legal scholars and judges.21 Along with Hart and Sacks’ TheLegal Process, Fuller’s ‘‘The Forms and Limits of Adjudication’’ was consideredone of the foundational documents in this school.22 Three leitmotifs soundthroughout the approach: the belief in courts as a forum of reason, rationalargumentation and neutral principles; the centrality of process in ensuringthe integrity of reasoned elaboration, which was the key to ‘‘sound’’decision-making; and the principle of ‘‘institutional settlement’’, namely,that citizens have a duty to follow decisions ‘‘duly arrived at’’ by thestate.23

In the aftermath of Lochner v New York,24 the belief in strong judicialrestraint was de rigueur among progressive lawyers and legal process scholarsin particular.25 There was a widespread belief in a very strong Americanpost-war consensus on political ideology and faith in the institutions ofgovernment.26 Notwithstanding the New Deal sympathies, there was alsoa strong undercurrent of libertarian27 and laissez-faire28 ideas about therelationship between government, markets, and society. Indeed, there is acertain irony that left-leaning scholars in Britain tend to emphasise the ideaof polycentricity, when it has been deployed most vigorously by libertarian

17 Fuller, ‘‘The Forms and Limits of Adjudication’’ (1978–1979) 92 Harvard Law Review 353 at p.398,see also p.403.

18 Fuller, ‘‘The Forms and Limits of Adjudication’’ (1978–1979) 92 Harvard Law Review 353 at p.399.19 Fuller, ‘‘The Forms and Limits of Adjudication’’ (1978–1979) 92 Harvard Law Review 353 at p.400.20 Fuller, ‘‘The Forms and Limits of Adjudication’’ (1978–1979) 92 Harvard Law Review 353.21 See H.M. Hart, Jr and A.M. Sacks, The Legal Process: Basic Problems in the Making and Application

of Law (prepared for publication from the 1958 Tentative Edition and containing an introductoryessay by W.N. Eskridge, Jr and P.P. Frickey) (Foundation Press, 1994), pp.102 et seq. [Hereinafter‘‘Eskridge, Jr and Frickey’’ refers to the introductory essay See generally, N. Duxbury, Patterns ofAmerican Jurisprudence (Oxford: OUP, 1992), Ch.4.

22 Eskridge, Jr and Frickey, p.cii.23 On ‘‘institutional settlement’’, see Hart and Sacks, The Legal Process: Basic Problems in the Making

and Application of Law, pp.1–9; Eskridge, Jr and Frickey, p.xcvi.24 198 U.S. 45 (1905).25 Duxbury, Patterns of American Jurisprudence, pp.233–234.26 D. Bell, The End of Ideology: On the Exhaustion of Political Ideas in the Fifties (Collier Books, 1960).27 Eskridge, Jr and Frickey, pp.cxii–cxiii.28 Duxbury, Patterns of American Jurisprudence, pp.257, 263.



philosophers such as Polanyi, Hayek and most recently by Randy E. Barnett.29

The strong faith in both private ordering and public-regarding governmentled to one of the major critiques of the process school.30 The principleof ‘‘institutional settlement’’ and the idea of neutral principles came to beregarded as an apology for state power and a defence of the status quo.31 Oneof the most important seeds of this critique was sown by the Brown v Boardof Education desegregation decision of the US Supreme Court.32 Many legalprocess scholars supported the decision morally, but found it difficult to squarewith the tenets of the school.33 Neither The Legal Process nor ‘‘The Forms andLimits of Adjudication’’ so much as address the case and its progeny, a glaringomission for critics and supporters alike.34

The impact of Brown and the recognition of the defects of the democraticsystem led several thinkers who were influenced considerably by the processschool to take new and markedly different directions. Fuller’s concept of thelimits of adjudication played either no role or was impliedly or forthrightlyrejected in the writings of Owen Fiss, Abram Chayes, John Hart Ely, RichardPosner, and Ronald Dworkin.35 Even in Richard Stewart’s seminal articleon the interest-representation model of administrative law—advancing a thesisto which Fuller’s idea bore the most direct relevance—there is scarcely anymention of the idea.36 It is furthermore notably absent from Neil Komesar’s

29 F. Hayek, Law, Legislation and Liberty: A New Restatement of the Liberal Principles of Justice and PoliticalEconomy, Vol.2 (Routledge, 1998), p.15 (considering Polanyi’s distinction between monocentric andpolycentric orders similar to his own distinction between organization and spontaneous orders); R.E.Barnett, The Structure of Liberty: Justice and the Rule of Law (Oxford: OUP, 2000), Chs 13 and 14 (usingthe idea of polycentricity as a foundational concept in support of the radical privatisation of publicservices). See also M. Polanyi, ‘‘The Determinants of Social Action’’ in E. Streissler et al., eds, Roadsto Freedom: Essays in Honour of Friedrich A. von Hayek (Routledge & Kegan Paul, 1969), pp.145–179(comparing polycentricity and Hayek’s work).

30 E. Mensch, ‘‘The History of Mainstream Legal Thought’’ in D. Kairys, ed., The Politics of Law:A Progressive Critique (Pantheon, 1982), p.18, esp. at p.30; Duxbury, Patterns of American Jurisprudence,pp.263–264; Eskridge, Jr and Frickey, pp.cxviii–cxxi.

31 C.R. Sunstein, ‘‘Lochner’s Legacy’’ (1987) 87 Columbia Law Review 873; see also Duxbury, Patternsof American Jurisprudence, p.276.

32 347 U.S. 483 (1954).33 Eskridge, Jr and Frickey, pp.cvi–cxiii (surveying the various process-based critiques and defences

of the decision); Fiss, ‘‘The Supreme Court 1978 Term’’ (1978) 93 Harvard Law Review 1 at p.39(‘‘It is as though the [civil rights era] never occurred—an erasure of some portion of the history ofprocedure’’).

34 Eskridge, Jr and Frickey; Fuller.35 See generally Eskridge, Jr and Frickey, for a discussion of the influence of the process school on

these various thinkers. Fiss, ‘‘The Supreme Court 1978 Term’’ (1978) 93 Harvard Law Review 1 atpp.39 et seq. offers the most effective rebuttal of Fuller, while Chayes, ‘‘The Role of the Judge in PublicLaw Litigation’’ (1976) 89 Harvard Law Review 1281, demonstrates the demise of the bipolar model. InEconomic Analysis of Law, 6th edn (Aspen Publishers, 2003), Posner advocates an analysis of law perhapsmost radically at odds with Fuller’s prescriptions. John Hart Ely’s theory in Democracy and Distrust: ATheory of Judicial Review (Harvard University Press, 1980), permits highly polycentric determinations,and in A Matter of Principle (Clarendon Press, 1986), pp.59–69, Dworkin rejects Ely’s theory as undulyrestrictive of the appropriate constitutional judicial role. The idea is also radically at odds with legalrealist pragmatist and critical legal studies approaches to adjudication.

36 R.B. Stewart, ‘‘The Reformation of American Administrative Law’’ (1975) 88 Harvard Law Review1669 at p.1789 (mentioning the word once, and proceeding, at pp.1790–1802, to pronounce a ‘‘dead


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contemporary elaboration of the idea of institutional choice and competence.37

At the present time, the polycentric flame has dulled to a low flicker in Americanlegal thought.38

Polycentricity and justiciability in English law

Regardless of its currency in American law, the concept of polycentricitycontinues to exert a powerful influence on the English law of justiciability andjudicial deference. Geoffrey Marshall described the idea of justiciability as aninquiry into the ‘‘aptness of a question for judicial resolution’’.39 The concepthas a fact-stating sense (i.e. whether the law recognises or denies jurisdiction toadjudicate the question), and a prescriptive sense (i.e. whether a court ought toadjudicate a given issue).40 Lorne Sossin further breaks down the prescriptivesense into an analysis of the ideas of institutional capacity and institutionallegitimacy.41

One can see the traces of Fuller’s ideas in Lord Diplock’s speech in Councilof Civil Service Unions v Minister for the Civil Service, where he addressed whycertain decisions were not appropriate for adjudication42:

‘‘Such decisions will generally involve the application of governmentpolicy. The reasons for the decision-maker taking one course rather thananother do not normally involve questions to which, if disputed, thejudicial process is adapted to provide the right answer, by which I meanthat the kind of evidence that is admissible under judicial procedures andthe way in which it has to be adduced tend to exclude from the attentionof the court competing policy considerations which, if the executivediscretion is to be wisely exercised, need to be weighed against oneanother—a balancing exercise which judges by their upbringing and theirexperience are ill-qualified to perform. . .’’

end’’ the suggestion that political systems can provide effective representation of interests affected byagency regulation).

37 N.K. Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy(University of Chicago Press, 1994); Law’s Limits: The Rule of Law, and the Supply and Demand of Rights(Cambridge: CUP, 2001).

38 Among the rare recent treatments that do not reject or seriously qualify Fuller’s idea, see B.E.Armacost, ‘‘Affirmative Duties, Systemic Harms, and the Due Process Clause’’ (1996) 94 MichiganLaw Review 982 at pp.1003–1009. More recent scholarly attention has focused on showing thatpolycentricity is not only limited to public law litigation: C.F. Sabel and W.H. Simon, ‘‘DestabilizationRights: Why Public Law Litigation Succeeds’’ (2004) 117 Harvard Law Review 1015 at pp.1056–1059,1060 et seq.; or has marshalled fresh evidence demonstrating the incompatibility of the doctrine withcontemporary institutional reform litigation: E.L. Rubin and M.M. Feeley, ‘‘Judicial Policy Makingand Litigation Against the Government’’ (2003) 5 University of Pennsylvania Journal of Constitutional Law617.

39 G. Marshall, ‘‘Justiciability’’ in A.G. Guest, ed., Oxford Essays in Jurisprudence (Oxford: OUP,1961), p.265 at p.269.

40 Marshall, ‘‘Justiciability’’, pp.267–268. See also the excellent discussion by R. Summers,‘‘Justiciability’’ (1963) 26 M.L.R. 530.

41 L. Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada (Carswell, 1999) pp.233et seq.; see also D. Galligan, Discretionary Powers: A Study of Official Discretion (Oxford: Clarendon Press,1986), p.241.

42 [1985] A.C. 374, HL.



The concern here with the narrow focus on the rights of the persons beforethe court echoes Fuller’s concern with resolving polycentric issues in a bipolarsetting. Court of Appeal and High Court judges have applied the concept inname,43 and elsewhere similar concerns have been raised in different words.44

While the House of Lords has generally avoided employing the concept byname, the Privy Council recently did so to justify curtailing judicial reviewof prosecutorial discretion.45 At least one judge on the European Court ofHuman Rights has employed the idea,46 and it is used explicitly and commonlyby the Supreme Court of Canada to assist in determining the correct standardof judicial review in administrative law.47

Several prominent legal scholars in Britain have endorsed Fuller’s analysis asa guide to determining the justiciability of issues. Several see a direct, generallink between polycentricity and justiciability.48 J.W.F. Allison in particular hasprovided a valuable analysis of polycentricity and its implications for publiclaw.49 While Allison has identified a number of important problems withFuller’s analysis, he also considers the doctrine to be a convincing reason formaking procedural reforms in public law.

The idea has been tied to a variety of familiar themes. Some have singledout the notion of ‘‘need’’ (and planning disputes) as being polycentric,50 whileothers have linked the idea to the commonly acknowledged need for judicialdeference to administrative expertise.51 It has been offered to determine thejusticiability of issues arising in the adjudication of negligence claims againstpublic authorities.52 Yet most invoke Fuller’s idea most often to support theclaim that resource allocation issues are or ought to be non-justiciable. Stanleyde Smith, Harry Woolf and Jeffrey Jowell, as well as Trevor Allan and David

43 R. v Home Secretary and Criminal Injuries Compensation Board Ex p. P [1995] 1 All E.R. 870, CA; R.(on the application of Hooper) v Secretary of State for Works and Pensions [2002] EWHC Admin 191; [2002]U.K.H.R.R. 785 at [160].

44 Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595;[2002] Q.B. 48 at [69] (Lord Woolf); see also R. v Cambridge Health Authority Ex p. B [1995] 2 AllE.R. 129, CA; R. (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment,Transport and the Regions [2001] UKHL 23; [2001] 2 W.L.R. 1389.

45 Mohit v Director of Public Prosecutions of Mauritius [2006] UKPC 20, [2006] 1 W.L.R. 3343 at [17];Sharma v Brown-Antoine [2006] UKPC 57; [2007] 1 W.L.R. 780 at [14].

46 S and G v Italy [2000] 3 F.C.R. 430 at 477, (concurring opinion of Judge Zupaneie).47 Pushpanathan v Canada (Minister of Citizenship and Immigration) [1998] 1 S.C.R. 982 at [32]; Baker v

Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 at [55]. Bastarrache J. suggested italso be countenanced within a general theory of judicial deference, M v H [1999] 2 S.C.R. 3 at [302]et seq., but the proposal failed to take root then or in subsequent cases.

48 Galligan, Discretionary Powers, pp.242–243; C. Harlow and R. Rawlings, Law and Administration,2nd edn (Butterworths, 1997), pp.598–602; P. Cane, Administrative Law, 4th edn (Oxford: OUP,2004), pp.55–57; see also G. Richardson and M. Sunkin, ‘‘Judicial Review: the Question of Impact’’[1996] P.L. 79 at p.80.

49 J.W.F. Allison, ‘‘Fuller’s Analysis of Polycentric Disputes and the Limits of Adjudication’’ (1994)53 C.L.J. 367; ‘‘A Procedural Reason for Judicial Restraint’’ [1994] P.L. 452; A Continental Distinctionin the Common Law: Revised Edition (Oxford: OUP, 1999), pp.204 et seq. and 36 et seq.

50 J. Jowell, ‘‘The Legal Control of Administrative Discretion’’ [1973] P.L. 178 at pp.213–215.51 R. Baldwin, Rules and Government (Oxford: Clarendon Press, 1994), p.45.52 C. Booth and D. Squires, The Negligence Liability of Public Authorities (Oxford: OUP, 2006)

pp.37–40.


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Feldman have all written that the allocation of scarce resources is a polycentrictask and therefore unsuitable for adjudication.53 However, while those whohave focused more directly on the subject of resource allocation in public lawmay (or may not) acknowledge the issue, none have endorsed the idea as aconceptual framework for assessing justiciability.54

Nearly all the studies referred to above, save those of Trevor Allan andnotably of J.W.F. Allison, simply adopt Fuller without critical assessment.The soundness of Fuller’s position is simply accepted, or in the case ofAllan and Allison, analysed and then accepted in large measure. But morerecent developments suggest that cracks may be appearing in the edificelong since abandoned in America. First, the more nuanced discussionsof resource allocation refuse to endorse the concept as determinative.55

Secondly, certain scholars who formerly advocated the idea have recentlyplaced less emphasis on it. Allan, for instance, has retreated somewhat fromhis more unqualified earlier endorsement of the idea.56 Jowell’s recentwork on judicial deference has put the idea in the background,57 orfailed to mention it at all.58 Allison’s nuanced discussion, by far the mostsophisticated, falls quite short of advocating polycentricity as a bright-line testfor justiciability.

Notwithstanding these growing tensions, most public law scholars continueto accept, in varying degrees, that Fuller’s idea has important implications forthe justiciability of issues, particularly in resource allocation disputes. However,

53 See S. de Smith, H. Woolf and J. Jowell, Judicial Review of Administrative Action, 5th edn (Sweet& Maxwell, 1995), pp.311–312; T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law(Oxford: OUP, 2001), pp.188–192; D. Feldman, Civil Liberties and Human Rights in England and Wales,2nd edn (Oxford: OUP, 2002), pp.229–230.

54 J.A. King, ‘‘The Justiciability of Resource Allocation’’ (2007) 70 M.L.R. 197 (no discussionof the idea); K. Syrett, ‘‘Opening Eyes to the Reality of Scarce Health Care Resources? R (on theapplication of Rogers) v Swindon PCT and Secretary of State for Health’’ [2006] P.L. 664 at p.669 (noting‘‘persistent anxieties’’ relating to polycentricity are often ‘‘rooted in an overly narrow conceptionof public law’s function . . .’’); K. Syrett, ‘‘Impotence or Importance? Judicial Review in an Eraof Explicit NHS Rationing’’ (2004) 67 M.L.R. 289 at p.295 (noting the pervasive assumption) andp.302 (acknowledging a modest role but calling the present view ‘‘regrettable’’); M. Chamberlain,‘‘Democracy and Deference in Resource Allocation Cases: A Riposte to Lord Hoffman’’ [2003] J.R.12 at [19] (critiquing a similar idea); E. Palmer, ‘‘Courts, Resources and the HRA: Reading Section 17of the Children Act 1989 Compatibly with Article 8 ECHR’’ (2003) 8 E.H.R.L.R. 308 (no mention);I. Hare, ‘‘Social Rights as Fundamental Human Rights’’ in B. Hepple, ed., Social and Labour Rights in aGlobal Context: International and Comparative Perspectives (Cambridge: CUP, 2002), p.153 (no mention);E. Palmer, ‘‘Resource Allocation, Welfare Rights—Mapping the Boundaries of Judicial Control inPublic Administrative Law’’ (2000) 20 O.J.L.S. 63 (no mention); D. O’Sullivan, ‘‘The Allocation ofScarce Resources and the Right to Life Under the European Convention on Human Rights’’ [1998]P.L. 389 (no mention). In his discussion of resource allocation and justiciability in the context oftort liability of public authorities, Paul Craig both avoids the use of the concept and warns against asimplistic, categorical view about the justiciability of resource allocation: Administrative Law, 5th edn(Sweet and Maxwell, 2004), pp.897–898.

55 ibid.56 Contrast Allan, Constitutional Justice, pp.188–192 and his ‘‘Human Rights and Judicial Review: A

Critique of ‘Due Deference’’’ (2006) C.L.J. 671 at pp.677 and 693.57 J. Jowell, ‘‘Judicial Deference and Human Rights: Question of Competence’’ in P.P. Craig and

R. Rawlings, eds, Law and Administration in Europe: Essays in Honour of Carol Harlow (Oxford: OUP,2003), p.80, fn.45.

58 J. Jowell, ‘‘Judicial deference: servility, civility or institutional capacity?’’ [2003] P.L. 592.



this view assumes necessarily that largely uncontroversial areas of adjudicationrespect this proposed boundary already. It is that assumption that is now ripefor challenge.

Polycentricity as a pervasive feature of adjudication

Fuller conceded that polycentricity is a common feature of the law and itsrelevance depends on its degree.59 His reply was that ‘‘[i]t is a questionof knowing when the polycentric elements have become so significant andpredominant that the proper limits of adjudication have been reached’’.60 Thisidea of degree is often quoted, but it seems that some commentators fail onthe one hand to follow through on its implications (Allan), and others fail tomention it at all (De Smith et al., Feldman).61 But even accepting this notion ofdegree, Fuller’s idea still faces many familiar counter-examples. Such examplesabound in the field of constitutional law and human rights, particularly now,when interest balancing is an explicit function of the English judiciary.62

Allison does press this sore spot, pointing out that Fuller grudgingly acceptedthe need for the desegregation decrees of the mid-1950s, though empha-sised their ‘‘serious moral drain on the integrity of adjudication’’.63 Otherlandmark constitutional and administrative law cases including the BelmarshPrison case,64 Anisminic,65 Bush v Gore,66 the Canadian Patriation and Secessionreferences67 have all involved topics of extraordinary polycentric dimensions.In each case there are typically weighty reasons for which the courts are willingto engage in polycentric subject-matter. There are also of course the morecontroversial judicial review cases which doubtless involved the adjudicationof heavily polycentric issues.68 European Community law as developed bythe European Court of Justice is perhaps the most strikingly polycentric. TheCourt has created private rights of action,69 routinely evaluates the legitimacy

59 Fuller, ‘‘The Forms and Limits of Adjudication’’ (1978–1979) 92 Harvard Law Review at p.397.60 Fuller, ‘‘The Forms and Limits of Adjudication’’ (1978–1979) 92 Harvard Law Review at p.397.61 See generally de Smith, Woolf and Jowell, Judicial Review of Administrative Action; Allan,

Constitutional Justice; Feldman, Civil Liberties and Human Rights in England and Wales; but nowalso Allan, ‘‘Human Rights and Judicial Review’’ (2006) C.L.J. 671.

62 R. (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 21; [2001] 2A.C. 532 at [27] (Lord Steyn).

63 Allison, ‘‘Fuller’s Analysis of Polycentric Disputes’’ (1994) 53 C.L.J. 367 at p.374. See also N.Barber, ‘‘A Prelude to the Separation of Powers’’ [2001] C.L.J. 59 at p.79; Eskridge, Jr and Frickey,pp.cvi–cxiii.

64 A and X v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 A.C. 68.65 Anisminic Ltd v Foreign Compensation Commission [1969] 2 A.C. 147, HL.66 531 U.S. 98 (2000).67 Reference re Resolution to Amend the Constitution [1981] 1 S.C.R. 753; Reference re Secession of Quebec

[1998] 2 S.C.R. 217.68 Secretary of State for Education and Science v Tameside Metropolitan BC [1976] 3 W.L.R. 641, HL;

Laker Airways Ltd v Department of Trade [1977] 2 W.L.R. 234, HL; Bromley v GLC [1983] 1 A.C. 768,HL; Hazell v Hammersmith and Fulham LBC [1992] 2 A.C. 1, HL.

69 Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] E.C.R. 1 (establishingthe doctrine of ‘‘direct effect’’ and conferring private rights of action upon individuals); Cases C 6 &9/90 Francovich & Bonifaci v Italian Republic [1991] E.C.R. I-5357 (establishing the principle of state


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and proportionality of public policy restrictions on trade and competition,70

and decides the meaning of terms that necessarily have profound implicationsfor the entire Community market.71

It may be that every leading private law case involves the resolution of aheavily polycentric problem. Fuller was aware of this issue, as his treatmentof contract law confirms. Fuller was a professor of contract law72 and viewedcontract as a fundamental means of social ordering.73 He thus acknowledgedthe fact that judges regulated important areas of the market:

‘‘The fact that an adjudicative decision affects and enters into a polycentricrelationship does not of itself mean that the adjudicative tribunal is movingout of its proper sphere. On the contrary, there is no better illustrationof a polycentric relationship than an economic market, and yet the layingdown of rules that will make a market function properly is one for whichadjudication is generally well suited.’’

Here Fuller admits that courts can engage polycentric disputes if they are wellsuited for it. This seems sensible, but the tenor of his paper is that the conceptof polycentricity should guide our analysis of what courts are well suited for.This potential inconsistency aside, we must evidently ask why courts shouldbe involved notwithstanding the presence of polycentric issues. He seeks toexplain the case of contracts:

‘‘The working out of our common law of contracts case by case hasproceeded through adjudication, yet the basic principle underlying therules thus developed is that they should promote the free exchange ofgoods in a polycentric market. The court gets into difficulty, not whenit lays down rules about contracting, but when it attempts to writecontracts.’’74

The distinction between creating ‘‘rules about contracting’’ and ‘‘writingcontracts’’—presumably procedure versus substantive rules—is arguablytenuous. Rules determining the enforceability of contracts may in effectdetermine content, reflect substantive notions of fairness, and embody

liability). See also Cases C 46 & 48/93Brasserie du Pecheur SA v Germany and R. v Secretary of State forTransport Ex p. Factortame (No.3) [1996] E.C.R. I-1029.

70 Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein [1979] E.C.R. 649(establishing that commodities lawfully produced in one Member State are presumptively marketable inothers); Case 112/84 Humblot v Directeur des Services Fiscaux [1985] E.C.R. 1367 (finding that France’shigh flat tax on cars whose engines have power ratings above 16CV was an indirectly discriminatorytax); Case 178/84 Commission v Germany [1987] E.C.R. 1227 (rejecting as unsupported by sufficientevidence Germany’s claim that its ban on additives was needed as a health precaution).

71 Case 8/74 Procureur du Roi v Benoit and Gustave Dassonville [1974] E.C.R. 837 (defining ‘‘measuresequivalent to a quantitative restriction’’); Case 27/76 United Brands Co v Commission [1978] E.C.R.207 (defining ‘‘dominant’’ in Art.82 EC); Case 6/72 Euroemballage Corn and Continental Can Co Ltd[1973] E.C.R. 215 (rejecting the Commission’s definition of relevant product market).

72 L. Fuller, Basic Contract Law, 5th edn (West Publishing, 1990).73 K. Winston, ed., The Principles of Social Order: Selected Essays of Lon L. Fuller, rev. edn (Hart, 2001),

pp.187–206.74 Fuller, ‘‘The Forms and Limits of Adjudication’’ (1978–1979) 92 Harvard Law Review 353, at

p.404.



important policy choices to a significant extent.75 In any case, the doctrinesof unconscionability, disclosure requirements on contracts of adhesion,prohibitions on penalty clauses, and the prohibition of contracts against publicpolicy may all be regarded as attempts by courts to write contracts. Contractlaw these days seems almost as concerned with protecting consumers as isit is about promoting free exchange,76 and the role of courts in applyingopen-textured standards such as reasonableness, good faith and fairness hasgreatly expanded.77 The fact that adjudication has worked relatively well indeveloping and applying substantive contractual rules shows that there must bemore to the question of determining the appropriateness of the judicial rolethan the polycentric nature of the problems it confronts. This is all the moreobvious given that the overwhelming majority of states use legislation and civilcodes to regulate contractual relationships.

The law abounds with other examples of courts adjudicating polycentricissues. The law of tort is one such example, particularly American lawof products liability,78 in which plaintiffs are invited to demonstrate aneconomically feasible ‘‘reasonable alternative design’’.79 Neil Komesar hasillustrated how nuisance law gives rise to heavily polycentric issues (thoughin the process of suggesting alternatives to adjudication),80 while Nick Barbermakes the point by reference to British competition law.81 Owen Fiss pulls nopunches: ‘‘It would probably include all judge-made law, and the doctrine ofprecedent itself.’’82

The case of tax law

It is helpful to examine tax law for two reasons. First, it shows that thejudges often adjudicate highly polycentric disputes in tax cases without second-guessing their competency to do so. Secondly, judges view themselves asperforming an important and essential role in their appellate and supervisoryjurisdictions, and many taxpayers would be slow to take that role away.Taxpayers look to the courts to provide protection against the unilateral

75 See generally P. Atiyah, ‘‘Contract and Fair Exchange’’ (1985) University of Toronto Law Journal 1,esp. pp.2–6; D. Kennedy, ‘‘Form and Substance in Private Law Adjudication’’ (1975) 89 Harvard LawReview 1685. See also Fiss, ‘‘The Supreme Court 1978 Term’’ (1978) 93 Harvard Law Review 1 at p.43(listing the consideration requirement and rules on offer and acceptance as examples of polycentricnorms).

76 Lord Steyn, ‘‘Contract Law: Fulfilling the Reasonable Expectations of Honest Men’’ (1997) 113L.Q.R. 433.

77 See, e.g. Misrepresentation Act 1967; Unfair Contract Terms Act 1977; Sale of Goods Act 1979;Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083).

78 See, e.g. A. Twerski, ‘‘Seizing the Middle Ground between Rules and Standards in Design DefectLitigation: Advancing Directed Verdict Practice in the Law of Torts’’ (1982) 57 New York UniversityLaw Review 521 at pp.551 et seq. (calling on courts to establish a ‘‘polycentricity quotient’’ in designdefect litigation).

79 Restatement (Third) of Torts (Products Liability), §2(b) (1997).80 Komesar, Law’s Limits, Ch.2.81 Barber, ‘‘A Prelude to the Separation of Powers’’ [2001] C.L.J. 59 at p.79.82 Fiss, ‘‘The Supreme Court 1978 Term’’ (1978) 93 Harvard Law Review 1 at p.43. In fact Fuller was

aware of the problem posed by stare decisis and recommended a relaxation of the doctrine.


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and unfettered exercise of power by government, whether in statutoryinterpretation or in the exercise of administrative discretion. They havedemanded the rule of law in their interaction with tax authorities, and for themost part have received it. The contrast between such cases and those involvingjudicial review of social welfare allocation is strong.83 This contrast exposes theinconsistent way in which polycentricity is offered as a justification for limitingjudicial review. The reasons that courts play a protective role in tax cases arealso instructive. They highlight why the idea of a bureaucratic organ makingfinal and incontestable determinations of people’s rights can appear odious. Itshows that where certain values are at stake, courts will apply stricter standardsof review than they ordinarily do where such values are not at stake, comewhat may for the Treasury. These reasons may be instructive in cases involvingdiscretionary allocative decision-making, where people’s fundamental humanrights, rather than corporate tax liability, are often at stake.

Before commencing this analysis, it is helpful to address two possibleobjections to the entire project. Some may view the existence of polycentricityin tax cases as a reason for curtailing judicial activity in those cases too. It isbeyond the scope and interest of this article to rebut this argument.84 Thissection would rather be addressed to those who would affirm the role of thejudiciary in tax cases while casting doubt on it in the realm of social welfareallocation. Secondly, some may attach great significance to the fact that intax cases courts restrain the government from taking things away from people(enforcing negative rights), rather than forcing it to hand out benefits (enforcingpositive rights). This point is only relevant in so far as it exposes the substantivemoral values behind what people think courts ought to be doing. In both cases,courts make determinations affecting the interests of several unrepresentedpersons. Furthermore, the value choices raised by this argument are themselvessuspect. There is little reason to think that those seeking to deflect tax liabilitythrough the courts (typically corporations and wealthy individuals) have a moreimportant interest at stake than do the beneficiaries of government revenue.To suggest that law privilege the status quo ante against state intervention issimply to give high priority to the existing distribution of property. The effectof this view is that the baselines for when state conduct becomes reviewablein law are formed and sanctioned by common law traditions. Cass Sunsteinhas shown how these traditions embody controversial social choices85 and that‘‘[t]he lesson of the demise of Lochner was that common law or status quo

83 This claim is evident in the different approaches historically taken by courts in respect of statutoryinterpretation (see text to fnn.91–115, below, especially fnn.114–115), deference to statutory tribunals(see Cooke v Secretary of State for Social Security [2001] EWCA Civ 734; [2002] 3 All E.R. 279;Hinchy v Secretary of State for Works and Pensions [2005] UKHL 16; [2005] 1 W.L.R. 967) and reviewfor Wednesbury unreasonableness and enforcement of substantive legitimate expectations (see text tofnn.134–147 below). The key point of this section of the article is that tax law is rife with polycentricitybut the concept is not discussed.

84 Such claims may be right. But showing that polycentricity concerns should exclude courts fromtax law does not demonstrate conclusively that they should be excluded from social welfare allocation.If one accepts that human welfare interests are more important than property interests, a separate casemay plausibly be made.

85 Sunstein, ‘‘Lochner’s Legacy’’ (1987) 87 Columbia Law Review 873.



baselines should no longer be used reflexively in public law’’.86 The issuesarising in tax law are polycentric, and whether the court ought to exercisereview of them is a separate question raising its own complicated issues.

Taxation and polycentricityFew tasks are more polycentric than the formation of taxation policy. It is ofcourse Parliament’s responsibility under the Bill of Rights of 1689 to decideupon and enact taxation policy, and chiefly for the Revenue87 to enforce it.But many determinations by the Revenue and its commissioners are contested.And those that are litigated often raise important policy and legal questionsthat the Revenue wants clarified.88 As will be shown below, courts havehistorically favoured the taxpayer and construed legislation narrowly. Yet dueto the growing sophistication of tax planning and Parliament’s inability to stemtax avoidance, courts have been called upon to play a greater role in preventingtax avoidance. John Tiley suggests that courts have treaded cautiously indeveloping this new role. He explains why:

‘‘A ruling as sought by one party may have unpredictable consequencesin that the ruling may be turned around so that while this scheme fails, areverse scheme, not before the court, will then be set up. In other cases itmay be that the taxpayer is arguing for a point of view which challengesthe prevailing orthodoxy and which, while good for that person orscheme, will cause substantial difficulties for others if it succeeds.’’89

These issues echo directly Fuller’s concern with unintended consequencesand the lack of participation of affected parties. The interpretation of taxationstatutes can have significant ramifications for public revenue and on theoperation of markets or large transactions. Every high-profile case is likelyto spawn a new tax-planning product. The goals underlying tax legislationare manifold, highly complex and interdependent with other social goals.Generally, courts appear by comparison with the Revenue to be less competentinstitutions for understanding the nature of such goals and best means foraccomplishing them. While a given court hears appeals and applications forjudicial review on tax matters occasionally, the Revenue and the Generaland Special Commissioners (administrative tribunals who hear appeals ontax assessments) deal with tax matters exclusively. The Revenue has a moreflexible range of powers to assess the likely revenue and thus redistributiveconsequences of any particular action or interpretation. Indeed, the discretionexercised in deciding whether to litigate a given matter is considerable,

86 C.R. Sunstein, ‘‘Constitutionalism after the New Deal’’ (1987) 101 Harvard Law Review 421 atp.502.

87 The Commissioners for Inland Revenue and Customs Act 2005 amalgamated the Inland Revenueand Her Majesty’s Customs and Excise into a single governmental department, namely, Her Majesty’sRevenue and Customs (HMRC). For ease of reference and understanding of past case law, this sectionshall refer to the ‘‘Board’’ or ‘‘Revenue’’ and the general conclusions reached apply to equally to theHMRC.

88 See J. Tiley, ‘‘Tax Avoidance Jurisprudence as Normal Law’’ [2004] B.T.R. 304 at p.310.89 Tiley, ‘‘Tax Avoidance Jurisprudence as Normal Law’’ [2004] B.T.R. 304 at pp.310–311.


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as noted by Tiley. Yet there are not widespread calls for Parliament torecall the courts from this domain of law, likely for the reasons madeclear below. Indeed, the more vociferous calls have been for greater judicialactivism in addressing the problem of tax avoidance.90 It is not suggestedhere that courts pay no deference to the Revenue or tax tribunals. It isclear that they do. But what becomes clearer in the following treatmentis that they do so far less than in review of public resource allocationdecisions.

Tax appeals and statutory interpretationIn his Hamlyn Lectures of 1981, Henry Monroe, then head of the SpecialCommissioners, explained in detail the history of tax law in Britain.91 The firstIncome Tax Act (1799) provided that aggrieved taxpayers could contest anassessment by bringing a claim to commissioners appointed by the Revenuefrom among laypersons. These officials are now known as the GeneralCommissioners, and are considered to be independent from the Revenue.In 1842, the Special Commissioners were added as a new body with functionsthat were administrative and quasi-judicial.92 For up to 75 years after theintroduction of the Income Tax Act of 1799, there was no right to appealfrom the determinations of these officials, and the process followed by theGeneral Commissioners was regarded to be more administrative than quasi-judicial.93 It was not until the introduction of the appeal to the courts onpoints of law in 1874 that courts were to be regarded as having any roleto play.94 Without delay, courts adopted a rule of statutory constructionthat ambiguities in statutory provisions were to be resolved in favour of thetaxpayer. In the earliest leading case on statutory interpretation, Lord Cairnsheld that:

‘‘. . . if the Crown, seeking to recover the tax, cannot bring the subjectwithin the letter of the law, the subject is free, however apparently withinthe spirit of the law the case might otherwise appear to be.’’95

Another leading authority is Inland Revenue Commissioners v Duke ofWestminster, in which the House of Lords held that if a given document ortransaction is genuine, the court cannot go behind it to look to an underlyingsubstance.96 This position was later softened considerably in the Ramsay case,but the attitude of courts towards taxpayers remains warm. Indeed, as ProfessorFreedman points out, the current approach by judges to tax avoidance suits

90 E. Simpson, ‘‘The Ramsay Principle: A Curious Incident of Judicial Reticence?’’ [2004] B.T.R.358.

91 H. Monroe, Intolerable Inquisition? Reflections on the Law of Tax (Stevens & Sons, 1981).92 For more recent functions see I. Saunders, Taxation: Judicial Review and other Remedies (John Wiley

& Sons, 1996), pp.66 et seq.93 Monroe, Intolerable Inquisition? Reflections on the Law of Tax, pp.9–10 (comparing it with the

administrative tribunals discussed in Harry Street’s Justice in the Welfare State (Stevens & Sons, 1968)).94 Monroe, Intolerable Inquisition? Reflections on the Law of Tax, pp.9–10.95 Partington v Att Gen (1869) L.R. 4 E. & I. App. H.L. 100.96 [1936] A.C. 1, HL.



those devising tax schemes: ‘‘[m]any cases have been decided in favour of thetaxpayer recently.’’97 With this background in mind, it will be enlightening toconsider an example of interpreting a tax statute.

Inland Revenue Commissioners v Laird Group Plc98 involved a tax appeal inwhich the House of Lords rejected the Revenue’s submission that a paymentof a dividend on ordinary shares was a ‘‘transaction relating to securities’’within the meaning of s.703 of the Income and Corporations Taxes Act1988. In giving the leading speech in which all Law Lords concurred, LordMillett analysed the inconclusive authorities relating to the matter and thenturned his attention to ‘‘the kind of relationship [between the transaction andthe securities] that Parliament had in mind’’.99 The meaning of the termswas defined in s.709(2) of the Act as including transactions ‘‘of whateverdescription’’ relating to securities. Their Lordships had held earlier that theseterms were to receive the ‘‘the widest meaning’’.100 In the Laird litigation,nearly every tribunal and court below the House of Lords answered thequestion differently. In other words, there was substantial disagreement as tothe legal meaning of these words. Furthermore, it was widely assumed bycourts, the Revenue, and taxpayers that dividends were indeed transactionsrelating to securities.101

Lord Millett placed emphasis on the fact that the word ‘‘securities’’ wascapable of a broad meaning, and that if the words at issue were interpreted toobroadly they would encompass certain types of transactions that in his viewshould not be covered (such as payment of interest on a debenture). Secondly,he held that Parliament intended to exclude liquidations of companies fromwithin the meaning of ‘‘transactions relating to securities’’. He accepted thesubmission that the reason for excluding liquidations from the definition wasthat such a distribution was not an alteration of the shares or of any rightsattached to such shares, but was rather merely giving effect to the rights thatalready existed. In other words, the sum belongs to them already; ‘‘they receivewhat is already theirs’’.102 He found that the position should be no differentwhile the company is a going concern.103

But the Court of Appeal had taken a different view over whether in factthe two situations were analogous.104 It found that the shareholder had noright to the dividends until declared by the directors. Lord Millett rejected thisreasoning by finding that ‘‘by declaring a dividend, the directors effectivelyrelease funds due to the shareholders from their [the shareholders’] power toretain them in the business’’.105 One tax lawyer points out that ‘‘[o]ne might

97 J. Freedman, ‘‘Defining Taxpayer Responsibility: In Support of a General Anti-AvoidancePrinciple’’ [2004] B.T.R. 332 at p.357.

98 [2003] UKHL 54; [2003] 1 W.L.R. 2476.99 [2003] UKHL 54; [2003] 1 W.L.R. 2476 at 677.100 Inland Revenue Commissioners v Joiner [1975] 1 W.L.R. 1701, HL, at 1706 (Lord Wilberforce).101 R. Kent, ‘‘Dividends not ‘Transactions in Securities’ After All: Laird Group plc v. Inland

Commissioners’’ [2004] B.T.R. 181 at p.182.102 Laird [2003] UKHL 54; [2003] 1 W.L.R. 2476 at 679.103 Laird [2003] UKHL 54; [2003] 1 W.L.R. 2476 at 679.104 [2002] S.T.C. 722.105 Laird [2003] UKHL 54; [2003] 1 W.L.R. 2476 at 679.


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imagine the Court of Appeal feeling a little aggrieved with [this] reasoning’’.106

He found it unrealistic to view a minority shareholder as having a ‘‘right’’ todividends in the suggested way.

The issue decided by the House of Lords was polycentric. Whether thepayment of a dividend on ordinary shares ought to be a tax advantage that canbe counteracted by the Revenue is a highly polycentric issue, with complexand interdependent legal, market and Treasury consequences. The words ofthe statute did not settle the matter in any reasonably objective way, so thedecision cannot be explained by the idea of merely giving effect to the statute.The courts and tribunals were required to look beyond the words of the statuteto Parliamentary intentions, and the nature and scheme of the Act, as wellas unstated or stated policy concerns, to resolve the issue. Deciding whetherpayment of a dividend on ordinary shares ought to be a transaction relatingto securities within the meaning of a tax statute called for an application of(perhaps weak) judicial discretion.107 Indeed, though perhaps some distancefrom Lord Mustill’s considered judgment, Lord Diplock was without doubt asto this judicial role:

‘‘The court may describe what it is doing in tax appeals as interpretation.So did the priestess of the Delphic oracle. But whoever has final authorityto explain what Parliament meant by the words that it used makes law asmuch as if the explanation it has given were contained in a new Act ofParliament.’’108

Bennion also acknowledges that Parliament ‘‘delegates by implication thepower to work out meaning’’.109 This much being understood, it is importantto think about the subject-matter. Regarding the intention to be attributedto taxing statutes generally, Professor Freedman points out that ‘‘governmentsuse tax systems to try to achieve multiple objectives—macro- and micro-economic and social management’’.110 Thus interpreting the purpose of aportion of tax legislation will often, as in this case, require the court to take adiscretionary position on a highly polycentric matter.

One might argue that such cases involve statutory interpretation and thatsome institution must determine the final meaning. Then why not theRevenue? It is a form of discretion that could have been left to the Revenue,or the Revenue in conjunction with its specialist tribunals. Later in this section,we will examine the reasons for which this has not occurred.

It is helpful to compare this approach to the one taken in interpreting somesocial welfare legislation. In R. v Hillingdon LBC Ex p. Puhlhofer,111 their

106 Kent, ‘‘Dividends not ‘Transactions in Securities’ After All’’ [2004] B.T.R. 181 at p.184.107 On judicial discretion, and on ‘‘weak discretion’’, see R. Dworkin, Taking Rights Seriously

(Harvard University Press, 1977), pp.31–39; see also H.L.A. Hart, The Concept of Law, 2nd edn(Oxford: OUP, 1994), Ch.VII and pp.272–276.

108 Lord Diplock, ‘‘The Courts as Legislators’’ Holdsworth Club Lecture, 1965 (quoted in M. Zander,The Law Making Process, 5th edn (Cambridge: CUP, 2004), p.212).

109 F.A.R. Bennion, Statutory Interpretation, 4th edn (Butterworths, 2002), p.414.110 Freedman, ‘‘Defining Taxpayer Responsibility’’ [2004] B.T.R. 332 at pp.343–344.111 [1986] 1 A.C. 485, HL.



Lordships refused to quash the decision of a local authority finding that a smallroom without facilities at a guest house constituted ‘‘accommodation’’ for afamily of four within the meaning of the Housing (Homeless Persons) Act1977. Lord Brightman held, for all the Law Lords, that ‘‘[w]hat is properlyto be regarded as accommodation is a question of fact to be decided by thelocal authority. There are no rules.’’112 Later in his speech, he laid down theprinciple for the courts to follow in similar cases:

‘‘Where the existence or non-existence of a fact is left to the judgmentand discretion of a public body and that fact involves a broad spectrumranging from the obvious to the debatable to the just conceivable, it is theduty of the court to leave the decision of that fact to the public body towhom Parliament has entrusted the decision making power save in a casewhere it is obvious that the public body. . .are acting perversely.’’113

Setting aside the question of whether it was reasonable in Ex p. Puhlhoferto consider the question as one of fact,114 this approach is notably differentfrom the one employed in tax appeals. It is also far from an unrepresentativesample. This view of the respective role of courts and public authorities incases involving social welfare allocation has been widespread among judges.115

A strong judicial attitude of deference to social security tribunals on appealedpoints of law appears equally at odds with the approach to tax tribunaljudgments.116

Judicial review of delegated legislationIn Commissioners of Customs and Excise v Cure & Deeley Ltd, Sachs J. held thata regulation made under a general discretionary power was ultra vires.117 Theissues arose in the context of an action to enforce an assessed amount againstCure & Deeley Ltd under a regulation. The validity of the regulation waschallenged in the course of the defence. The relevant statute empowered thecommissioners to:

112 [1986] 1 A.C. 485 at 517.113 [1986] 1 A.C. 485 at 518.114 D. Pollard, ‘‘Judicial Review and Homelessness’’ in T. Buck, ed., Judicial Review and Social Welfare

(Pinter, 1998) p.158 at p.162 (explaining the role of the court in defining ‘‘accommodation’’).115 See, e.g. Southwark LBC v Williams and Southwark LBC v Anderson [1971] Ch. 734 at 740,

CA (‘‘It cannot have been intended by Parliament that every person who was in need of temporaryaccommodation should be able to sue the local authority for it’’); R. v Bristol Corp Ex p. Hendy [1974] 1W.L.R. 498 at 502, CA (‘‘the duty to secure accommodation placed upon the local authority is a dutyto act reasonably.)’; Din v Wandsworth LBC [1983] 1 A.C. 657, HL (persons homeless ‘‘intentionally’’if they vacate former premises upon receipt of distress warrant for rent arrears instead of waitingfor eviction order); R. v Inner London Education Authority Ex p. Ali (1990) 2 Admin. L.R. 822, QB(council’s duty to ensure availability of sufficient schools a ‘‘target duty’’ not enforceable by individuals);Rolls v Dorset CC [1995] Q.B. 158, CA (the meaning of ‘‘gypsies’’ is for the local authority to decide);R. v Gloucestershire CC Ex p. Barry [1997] A.C. 584, HL (availability of public resources is relevant todefining someone’s ‘‘need’’). For many other examples, see J.A.G. Griffith, The Politics of the Judiciary,5th edn (Fontana Press, 1997), Ch.4.

116 Cooke v Secretary of State for Social Security [2001] EWCA Civ 734; [2002] 3 All E.R. 279 (HaleL.J., as she then was); Hinchy v Secretary of State for Works and Pensions [2005] UKHL 16; [2005] 1W.L.R. 967 at [49], [57] (Baroness Hale).

117 [1961] 3 All E.R. 641, QB.


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‘‘. . . make regulations providing for any matter for which provisionappears to them to be necessary for the purpose of giving effect to theprovisions of this Part of this Act and of enabling them to discharge theirfunctions thereunder.’’

The impugned regulation permitted the commissioners, where a personfailed to provide a complete and accurate return as required by the relevantregulations, to determine the amount of tax owing thereunder and make itpayable within seven days. Sachs J. accepted the submission for the defendantsthat ‘‘there was no more justiciable issue than the question whether ornot the subject was liable to pay tax’’.118 Indeed, the main reason forwhich Sachs J. found the regulation ultra vires was that, in light of thenature, object and scheme of the enabling statute, it unlawfully allowed thecommissioners to ‘‘take on themselves the powers of a High Court judgeand decide issues of fact and law . . .[and to exclude] the subject from accessto courts . . .’’.119 It was a matter that went to the ‘‘vital right to have theindependent decision of the courts on the question whether or not a tax isdue . . .’’,120 effectively substituting ‘‘the rule of tax collectors for the ruleof law . . .’’.121 This was a case where the commissioners submitted, onthe strength of many authorities, that the statute used the widest words thatParliament could use to ‘‘confer unfettered discretion, and that they constitute[the] most unambiguous, plain, and unqualified terminology . . .’’.122 Thecommissioners argued that the non-judicial method for assessing the amountwhen an incomplete return was submitted was based on a ‘‘fiscal mechanismof great originality’’ that involved providing that registered persons wouldkeep books for a number of years.123 They would make confidential inquiriesof various customers who would not otherwise be willing to provide theinformation if the proceedings were public (hence the reluctance to usecourts).124 Counsel added, ‘‘[t[he whole system of collection of tax breaksdown when returns are false’’.125 Evidently there was much at stake. Thejudge did not answer these arguments directly. Instead, he lamented the failureto respect the principles of natural justice, highlighted the potential for anabuse of power, and found, with palpable disdain, that the procedure was‘‘capable of producing results adversely different . . . to those which wouldresult from a judicial determination . . .’’.126 He distinguished the authoritiessubmitted by the commissioners because they concerned emergency legislationand legislation providing for planning decisions, which were ‘‘widely different’’from taxation of the subject.127 While no further argument was given as to why,

118 [1961] 3 All E.R. 641 at 652, 657.119 [1961] 3 All E.R. 641 at 659.120 [1961] 3 All E.R. 641 at 647.121 [1961] 3 All E.R. 641 at 659.122 [1961] 3 All E.R. 641 at 652.123 [1961] 3 All E.R. 641 at 649.124 [1961] 3 All E.R. 641 at 649.125 [1961] 3 All E.R. 641 at 649.126 [1961] 3 All E.R. 641 at 650.127 [1961] 3 All E.R. 641 at 658.



it appears implicit that support was to be found in the authorities providingfor the ‘‘normal right’’ of the taxpayer to obtain the decision of a competentcourt.128

Thus it appears in the case that the decision ultimately was a contest betweenconsiderations about the rule of law and controls on the abuse of power on theone hand, and the commissioners’ arguments about regulating taxation in thepublic interest in the context of a broad statutory provision on the other. Thelatter was, of course, a highly polycentric issue, situated in a highly polycentricarea. Sachs J. weighed up the arguments and found in favour of the former.

Similarly, the Divisional Court held in R. v Customs & Excise CommissionersEx p. Hedges & Butler Ltd that regulations empowering the commissioners tocompel the production of a company’s business records were ultra vires.129 Theenabling legislation was in the widest of terms providing that the regulations‘‘may contain such incidental or supplementary provisions . . . necessary orexpedient for the protection of the Revenue’’. The commissioners actedunder the regulations to compel the production of records pertaining tonon-excisable aspects of the applicant’s business. The applicant argued thatthe net was cast too wide because it allowed the commissioners to imposeonerous requirements regarding matters that had nothing to do with theirproper jurisdiction. The commissioners replied that ‘‘it is surprising whatpart innocuous records may play in building up a complete picture of whatis going on’’.130 The commissioners also contended the powers conferredby the enabling statute were unlimited. Yet Mustill L.J. rejected this andfound the regulation to be ultra vires because the power contended forwas a radically more extensive one than provided for in the enabling Act.As such, it was not ‘‘incidental’’ or ‘‘supplementary’’, as the enabling Actprovided.131 His reasoning was based on the fact that the relevant provisionof the enabling Act contained a list of specific powers together with aresidual power as quoted above. He held that the residual power to enactregulations must be exercised in a manner incidental or supplementary tothe powers actually enumerated in the same section and not as broadly asthe legislation actually suggests. This argument is not without merit, butit would be disingenuous to suggest that it was a clear logical deductionof the meaning of the statute. It rather appears that in making such afinding, he was implicitly rejecting the commissioners’ submission that thepower was required to build up a complete picture of which goods wereexcisable.

In his concurring speech, McNeill J. made this point in no uncertain terms.He held, contrary to Mustill L.J. on this point, that the regulation could in factbe construed intra vires in a manner that nonetheless still excluded the powerthe commissioners sought to exercise. He was concerned about whether theregulation could allow an ‘‘excess of power’’, and found that:

128 [1961] 3 All E.R. 641 at 647, 651.129 [1986] 2 All E.R. 164, QB.130 [1986] 2 All E.R. 164 at 170.131 [1986] 2 All E.R. 164 at 171 (Mustill L.J.).


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‘‘. . . it would . . . be an unreasonable consequence . . . of construingthe regulation in the wider meaning so as to require the preservation[of records] with a view to production of his business records whollyunconnected with the wines and spirits trade.’’132

In so finding, he added that he was ‘‘fully aware that in reaching theconclusion which I do I am rejecting the natural meaning of the words. . .’’.133 Thus McNeill J. appears simply to have substituted his opinion onwhether compelling production of records unrelated to excisable goods wasnecessary for assembling the ‘‘complete picture’’ to which the commissionersattached much value. Or, rather, he substituted his view for whether such anintrusive power, needed or not, could be exercised on the basis of such a vaguestatutory grant.

Judicial review of revenue discretionCourts have developed a fairly liberal doctrine of abuse of power underwhich judicial review of Revenue conduct on grounds of Wednesburyunreasonableness takes place.134 In R. v Inland Revenue Commissioners Exp. National Federation of Self-Employed and Small Businesses Ltd,135 the Houseof Lords discussed various concepts of review in the taxation context. LordDiplock spoke of unlawfulness or ultra vires conduct, Lord Wilberforce ofabuse of power, and Lord Scarman more widely of the notion of fairness:

‘‘But I do not accept that the principle of fairness in dealing with the affairsof taxpayers is a mere matter of desirable policy or moral obligation. . .Iam persuaded that the modern case law recognises a legal duty owed bythe Revenue to the general body of taxpayers to treat taxpayers fairly.’’136

The courts have developed this notion of fairness in an incremental manner.In R. v Inland Revenue Commissioners Ex p. Preston, Lord Templeman found forthe majority of the House of Lords that unfairness must amount to an abuse ofpower.137 This position was quite deferential to the Revenue and interpretedas a doctrine similar to that of legitimate expectations. It had until recentlyonly been applied in cases where an unambiguous representation and failureto comply had been made by the Revenue.138 However, the Court of Appealtook the doctrine further in the case of R. v Commissioners of Inland Revenue Exp. Unilever Plc.139 At stake was a £17 million tax liability. The Revenue hadallowed Unilever to file for a form of tax relief outside the statutorily prescribedperiod for about 20 years. Abruptly in 1988, it enforced the time period againstUnilever and thereby denied it £17 million pounds in tax relief. At that

132 [1986] 2 All E.R. 164 at 175.133 [1986] 2 All E.R. 164 at 175.134 Saunders, Taxation: Judicial Review and other Remedies, Ch.9, esp. pp.142–143.135 [1981] S.T.C. 260, HL.136 [1981] S.T.C. 260 at 279.137 [1985] A.C. 835, HL.138 See also Matrix Securities Ltd v Inland Revenue Commissioners [1994] S.T.C. 272, HL.139 [1996] S.T.C. 681. See C. Forsyth, ‘‘Wednesbury Protection of Substantive Legitimate

Expectations’’ [1997] P.L. 375.



point in time, the Preston doctrine and subsequent jurisprudence requiredthat representations concerning tax clearance be unambiguous. The Court ofAppeal broke with this approach, acknowledging that it was taking a ‘‘moreflexible approach to what constitutes vitiating unfairness’’140 and that ultimately,‘‘any fairness challenge must inevitably turn on its own individual facts’’.141

Simon-Brown L.J. held that the category of legitimate expectation was ‘‘notnecessarily exhaustive of the grounds upon which a successful substantiveunfairness challenge may be based’’.142 The Court quashed the decision.

The issue in this case was whether the Revenue should be permitted to actin such a way, regardless of the reasons offered, or whether to do so wouldbe unfair. In deciding that the Revenue could not, the court was imposinga substantive control on Revenue’s conduct in a matter that, involving£17 million and serving as a precedent for the Revenue and in public lawgenerally,143 could have significant redistributive repercussions.

The Unilever case would have been regarded as groundbreaking had itconcerned welfare provision rather than tax collection. This is partly evidentin the disagreements between lower courts over the doctrine of substantivelegitimate expectations. Whereas the line of authority leading to PrestonandUnilever was largely uncontroversial, the same was not true of cases in thewelfare and prison context. When a prisoner in Ex p. Hargreaves sought torely the endorsement of substantive legitimate expectations found in Sedley J.’sjudgment in Ex p. Hamble (Offshore) Fisheries Ltd,144 the Court of Appeal rathercastigated his judgment as ‘‘heresy’’ and ‘‘wrong in principle’’.145 Despite thefact that Preston andUnilever were both cited to the Court in argument, neitherwas even mentioned in the judgment.146 The schism became so obvious thatLord Woolf felt bound to address it for the Court of Appeal in Ex p. Coughlan:

‘‘It cannot be suggested that special principles of public law apply to theInland Revenue or to taxpayers. Yet this is an area of law which hasbeen a site of recent controversy, because while Preston has been followedin tax cases, using the vocabulary of abuse of power, in other fields ofpublic law analogous challenges, couched in the language of legitimateexpectation, have not all been approached the same way.’’147

This development thus appears wholly consistent with the already noteddivergence in approaches to statutory interpretation and review of tribunalfindings. While deference and justiciability are the watchwords in the social

140 [1996] S.T.C. 681 at 696 (Simon Brown L.J.).141 [1996] S.T.C. 681 at 695.142 [1996] S.T.C. 681 at 695.143 See, e.g. R. v National Lottery Commission Ex p. Camelot Group Plc [2001] E.M.L.R. 3 at [68] et

seq., QB (applying the notion of fairness developed in the Unilever case).144 R. v Ministry of Agriculture Fisheries and Food Ex p. Hamble (Offshore) Fisheries Ltd [1995] 2 All E.R.

714 (QB), p.724.145 R. v Secretary of State for the Home Department Ex p. Hargreaves [1997] 1 W.L.R. 906 at 921 (Hirst.

L.J.) and 925 (Pill L.J), CA.146 [1997] 1 W.L.R. 906 at 907.147 R. v North and East Devon Health Authority Ex p. Coughlan [1999] Q.B. 213 at [61], CA; see also

Forsyth, ‘‘Wednesbury Protection of Substantive Legitimate Expectations’’ [1997] P.L. 375 at p.382.


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welfare context, with polycentricity providing a key conceptual justification,different values and outcomes are found at play in tax law.

The above three subsections have shown that courts grapple with polycentricissues in tax matters, in interpretation and judicial review, and tend to be moreassertive than Fuller’s doctrine might counsel. It is instructive to examine moreclosely what role courts are expected to play in tax cases, and how they havemanaged such a role amid the prevalence of polycentric problems.

The role of the courts in tax casesThe origins of judicial approaches in tax cases stretch back to attitudesprevailing in 1799.148 At the time, Blackstone’s Commentaries affirmed thesanctity of private property as an ‘‘absolute right, inherent in every Englishman’’permitting not ‘‘the least violation of it; no, not even for the general good ofthe whole community’’.149 Tax collectors had an unenviable calling. In theHamlyn Lectures of 1981, Henry Monroe discussed Blackstone’s castigation ofthe procedures involved in assessing tax liability at the time, ‘‘thereby settingthe pattern for all future generations of lawyers’’.150 Blackstone lectured atOxford about the ‘‘arbitrary proceedings of excise law’’ which seemed ‘‘hardlycompatible with the temper of a free nation’’.151 Adam Smith had publishedThe Wealth of Nations in 1776, and in it argued for minimal taxation. Hewrote in particular of the ‘‘odious examination of tax-gatherers’’ which couldexpose tax payers ‘‘to much unnecessary trouble, vexation and oppression’’.152

Following on such sentiments, much of the history of taxation law is a narrativeof how the courts sought to restrain the actions of the Revenue.153 In 1955Professor Wheatcroft reaffirmed that ‘‘Parliament can expect no discretion orelasticity from the courts in enforcing taxation law’’.154 Against this backdrop,one can see some of the values underlying the desire to have courts involved.

First, it is apparent from the historical survey that the quasi-judicialdevelopment of the General and Special Commissioners was to give thetaxpayer some avenue to complain about unfair assessments. It was felt thata quasi-judicial and eventually independent ‘‘second-look’’ was necessary tocatch such errors.

Secondly, the principal role for courts would seem to be the protectionagainst the abuse of power. In the cases examined above there is very littleif any discussion of the Revenue’s expertise in taxation matters, and howwell placed it is to foresee the consequences of one interpretation over

148 Monroe, Intolerable Inquisition? Reflections on the Law of Tax, p.4.149 Monroe, Intolerable Inquisition? Reflections on the Law of Tax, p.3 (quoting Blackstone’s Commentaries,

Book 1, Ch.1).150 Monroe, Intolerable Inquisition? Reflections on the Law of Tax, p.4.151 Monroe, Intolerable Inquisition? Reflections on the Law of Tax, p.4.152 Monroe, Intolerable Inquisition? Reflections on the Law of Tax, p.5 (quoting Smith’s The Wealth of

Nations, Book V, Ch. II).153 See generally Monroe, Intolerable Inquisition? Reflections on the Law of Tax. The early hostilities

from lawyers and others faced by the income tax system is the overarching theme of the Lectures.154 G.S.A. Wheatcroft, ‘‘The Attitude of the Legislature and the Courts to Tax Avoidance’’ (1955)

18 M.L.R. 209 at p.218.



another. There rather seems to be a simple trade-off of expertise and foresightof consequences on the one hand for the competing value of controlling theadministrative abuse of power and ensuring a modicum of fairness on the other.The idea of the Revenue interpreting its statutory obligations, or exercising itsdiscretion, with minimal judicial oversight appears odious to the rule of law.Indeed, Wade and Forsyth cite the Cure & Deeley Ltd case as authority for thegeneral rule that there may be no truly unfettered discretion in public law.155

This fits well with the longstanding policies in administrative law of rejectingclaims to unfettered discretionary power and resisting the ouster of judicialreview.156 Yet this is a far cry from Lord Brightman’s finding in Ex p. Puhlhoferthat where the meaning of ‘‘accommodation’’ in homelessness legislation isconcerned, ‘‘[t]here are no rules’’.157

Thirdly, the more recent and developing role of judges is to respect, preserve,and facilitate legislative purposes where legislation is incapable of achieving thejob itself. This principle is reflected in the agonising dialogue between courtsand Parliament in the effort to stem tax avoidance. As Lord Scarman heldin Furniss v Dawson, ‘‘[d]ifficult though the task may be for judges, it is onewhich is beyond the power of the blunt instrument of legislation’’.158 Jon Tileyrecommends that courts can adapt to this role by simply ‘‘developing newmethods of interpretation for new situations . . . on a flexible and pragmaticcase-by-case basis [and] can develop different tests for different circumstances. . .’’.159 Some authors have for similar reasons advocated a similar ‘‘gap-filling’’role for courts in resource allocation cases.160

Finally, the courts were concerned with the protection of fundamentalvalues, and in particular, what Blackstone called the ‘‘absolute’’ right toproperty. The courts were constantly suspicious of government overreachingin taxation, and viewed themselves as the guardians of liberty and property. Thisemboldened them, doubtless excessively at first,161 to restrain the Revenue.This may indicate that in cases where fundamental values are at issue, theremay be a societal expectation that courts will engage in stricter scrutiny ofgovernment conduct and expect more formal expositions of reasoning. Sucha proposition derives support from the approach taken to judicial reviewof matters implicating human rights generally, and including such reviewunder the common law principles.162 The same insight also likely explainsthe high degree of judicial control over the criminal prosecution and refugeeapplication process, notwithstanding the substantial institutional competence

155 H.W.R. Wade and C. Forsyth, Administrative Law, 9th edn (Oxford: OUP, 2004), pp.354–356.156 Padfield v Minister of Agriculture [1968] A.C. 997, HL; Anisminic Ltd v Foreign Compensation

Commission [1969] 2 A.C. 147, HL.157 [1986] 1 A.C. 485, HL.158 [1984] A.C. 474 at 514, HL.159 Tiley, ‘‘Tax Avoidance Jurisprudence as Normal Law’’ [2004] B.T.R. 304 at p.330.160 Chamberlain, ‘‘Democracy and Deference in Resource Allocation Cases’’ [2003] J.R. 12.161 Monroe, Intolerable Inquisition? Reflections on the Law of Tax, p.64: (‘‘Judges can no longer be relied

on invariably to vote for property’’).162 See M. Hunt, Using Human Rights Law in English Courts (Hart, 1997); P.P. Craig, Administrative

Law, 5th edn (Sweet & Maxwell, 2004), pp.562–568.


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deficits in those areas as well. In all such cases, courts are often willing totake a harder look at the facts, possibly introduce a strained construction, orapply an open-textured concept such as ‘‘fairness’’ or ‘‘reasonableness’’ in amore searching or demanding way. This suggests further that an honestly heldview that social rights are human rights would make a real difference in legalpractice.

Conclusion and implications

While Fuller set out to show that polycentric problems demarcated the limitsof adjudication, he rather managed to identify a pervasive feature of the law.Furthermore, the pervasiveness of polycentricity has only increased over time.It is a feature of many areas of adjudication. The topic of tax law provided aninteresting insight into the judicial treatment of polycentric subject matter. Itshowed both how and why courts adjudicate polycentric issues, and also howthe moral standards of society can influence what institutional role we feelcourts ought to perform.

This analysis leads to either of two conclusions. The first would be that theconcept should fade to obsolescence in favour of more sophisticated analysesof judicial competence. This has been the general approach in America.163

A second approach would be to refine the doctrine to render it moreconsistent with the role of courts in contemporary society. In my view, such arefinement would need to meet three objectives: to clarify that polycentricityis a property of issues and not areas of law, thus pre-empting the tendencytowards inconsistency between areas of law; to explain when it is that a legalissue is polycentric, and explain away what appear to be obvious counter-examples (such as the enforcement of a clear statute); and to explain why courtsadjudicate certain polycentric issues, whether this is justified, and if so how tominimise the negative impact of such a process. This last refinement wouldneed to explain what countervailing factors attenuate or offset the concernsraised by the adjudication of polycentric issues. The proper articulation anddefence of such a reformulation goes beyond what could be offered in thepresent article.164

While these two options remain open, it should be clear that another isfirmly closed. The idea of polycentricity cannot presently be relied uponwithout serious contradiction to justify judicial restraint in public law. Judgesand scholars will need either to abandon the doctrine, recast it in a moredefensible form, or radically change the role of adjudication in contemporarylegal practice.

163 See generally text to fnn.30–38 above.164 I will shortly make available on SSRN a paper detailing my attempt at such refinements.


Constitutionalism and Legislation in Special Educational Needs Law 125

Constitutionalism and Legislation inSpecial Educational Needs Law: AnAnglo-Irish Perspective

Conor O’MahonyLecturer in Law, University College Cork

Comparative law; Constitutional rights; Human rights; Ireland; Localeducation authorities’ powers and duties; Right to education; Specialeducational needs

In the United Kingdom, with its constitutional tradition of parliamentarysovereignty, the question of how rights are best protected has long been atopic of heated discussion. In recent years, the incorporation into domesticlaw of the European Convention on Human Rights (ECHR) through theHuman Rights Act 1998 has attempted to address this issue by bringingrights much closer to centre-stage in UK law and policy making and creatinga constitutional expectation that Convention rights will be respected by allbranches of government,1 as well as providing mechanisms through whichthis expectation is intended to become a reality. However, given the relativeyouth of the Act, there is as yet no definitive view as to how effective it hasbeen. In contrast, the presence in Ireland since 1937 of a written Constitutioncontaining an extensive justiciable Bill of Rights has created a more settlednotion in that jurisdiction of how rights should be protected. However, recentdifficulties arising from the enforcement of one of those justiciable rights—theright to education—have led to some debate amongst judicial and academicmembers of the legal community regarding the exact role to be played bya written constitution in the protection of rights, and of the position to beoccupied within such a document by a resource-dependent right such as theright to education.

The purpose of this article2 is to consider the role of constitutional provi-sions and of legislation in the protection of the right to education, focusingon the context in which that right is most frequently breached—children with

1 J. Jowell, ‘‘Judicial deference: servility, civility or institutional capacity?’’ [2003] P.L. 592 at p.597.2 This paper has its origins in a paper presented by the author at the 4th World Congress on

Family Law and Children’s Rights in Cape Town, South Africa, March 20–23, 2005. The author isgrateful for the comments offered by Katherine Williams and Ann Sherlock of the University of Wales,Aberystwyth.


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special educational needs. In considering this topic, reference will be madeto the contrasting experience of the United Kingdom and Ireland, wherebyin the United Kingdom, there is no positive entrenched constitutional rightto education—certainly not in the sense of an entitlement3—while in Irelandthere is a well established and highly developed justiciable constitutional rightto education, which includes a right to special educational provision. Thesituation in the two jurisdictions regarding legislation is also significantly differ-ent, as England and Wales has had a detailed legislative framework for specialeducational needs for over two decades, while Ireland only enacted detailedlegislation in this field in mid-2004. This paper will assess the impact of thepresence or absence of a constitutional right to education in each jurisdiction,and consider the role that is played by legislation and its relationship withthe constitutional right. Through this, it is hoped that conclusions can bedrawn as to the relative significance of a constitutional right and of a legislativeframework in making adequate legal provision for the protection of the rightto education of children with special educational needs.

What is the value of a constitutional right to education?

In considering the value of a constitutional right to education, this discussion isconcerned specifically with a justiciable provision in an entrenched constitution,such as Art.42 of the Irish Constitution.4 There is a variety of reasons whichcan be put forward which militate in favour of placing the right to educationon such a constitutional footing, both on a theoretical and practical level. Thefirst of these is the position of the right to education as arguably one of the mostfundamental of all rights. This stems from a number of aspects of the right, butabove all from the position of education as a prerequisite to the realisation ofmany other rights. The Committee on Economic, Social and Cultural Rightshas referred to education as ‘‘both a human right in itself and an indispensablemeans of realizing other human rights’’.5 The fact that the right to educationis a prerequisite to the full realisation of the right to work in a profession ofone’s choice and the right to earn an adequate standard of living is self-evident.Moreover, the right to education is connected to many other rights in a less

3 The closest provision to a constitutional right to education in the UK is Art.2 of Protocol No.1to the ECHR, as incorporated into domestic law by the Human Rights Act 1998; the limited scopeof this provision when compared with the right to education under the Irish Constitution is discussedbelow.

4 The Irish Constitution of 1937 is an entrenched document and can only be amended by legislationpassed in parliament and ratified in a majority vote in a referendum: see Arts 46 and 47. Article 42confers a right to free primary education on children, and case law has defined this education suchthat it should allow children to make the best possible use of their capacities, however limited thosecapacities may be. This basic right is bolstered by a number of related rights and provisions, andextensive provision is also made for parental rights in education. Although other economic and socialrights such as those relating to housing and healthcare are dealt with in the non-justiciable DirectivePrinciples of Social Policy in Art.45, education is given a separate, justiciable provision of its own. Seegenerally C. O’Mahony, Educational Rights in Irish Law (Dublin: Thomson Round Hall, 2006).

5 Committee on Economic, Social and Cultural Rights, The Right to Education (Art.13), GeneralComment No.13, E/C 12/1999/10, December 8, 1999, para.1.



obvious way. These include the right to vote, which is fatally undermined inthe absence of an adequate education. The uneducated will have little chanceof exercising a fully informed vote; this has been recognised by US SupremeCourt in the case of Plyler v Doe when the Court stated that ‘‘. . . somedegree of education is necessary to prepare citizens to participate effectivelyand intelligently in our open political system if we are to preserve freedomand independence’’.6 Similar arguments can be constructed in relation to theright to the enjoyment of the highest attainable standard of health, for whicheducation in nutrition, hygiene, environmental sanitation, accident prevention,family planning and the dangers of communicable diseases and infections isessential.7

The fundamental nature of the right to education stems also from its inherentconnection to human dignity. The central role that the ideal of humandignity plays in the human rights movement is illustrated by its invocationin the Preamble to the Universal Declaration of Human Rights (UDHR)8;interestingly, this step was taken 11 years previously in the Preamble to theIrish Constitution,9 and it has been argued that human dignity is, along withfreedom, the most fundamental of all values under the Irish Constitution.10

There can be no doubt that education has a fundamental connection tohuman dignity; it brings about basic life skills such as communication andself-reliance, in the absence of which dignity is hugely undermined. Article13(1) of the International Covenant on Economic, Cultural and Social Rights(ICESCR) recognises this connection by stating that education should ‘‘bedirected to the full development of the human personality and the sense of itsdignity’’.

The importance of education in this context is further amplified in the field ofspecial educational needs, where even the most basic elements of human dignityare sometimes only attainable pursuant to intensive and ongoing education.Mary Warnock has described the difference that education can make toa severely disabled child as the ‘‘difference between self-determination, orfreedom, albeit extremely limited, and total dependency and indifference tothe real world’’.11 Thus it is clear that the full realisation of human dignityis inherently connected to the provision of adequate education for all. Thefact that education is essential to the pursuit of one of the central values ofhuman rights law as a whole clearly shows that education is one of the morefundamental rights.

6 457 U.S. 202 at 221 (1982).7 This connection has been expressly recognised by Art.24 of the ICESCR.8 The preamble of the UDHR refers to ‘‘. . .the inherent dignity. . .of all members of the human

family [as] the foundation of freedom, justice and peace in the world. . .’’.9 The preamble of the Irish Constitution states that ‘‘. . .the people of Eire. . .seeking to promote

the common good. . .so that the dignity and freedom of the individual may be assured. . .’’.10 See generally J. O’Dowd, ‘‘Dignity and Personhood in Irish Constitutional Law’’ in G. Quinn,

A. Ingram and S. Livingstone, eds, Justice and Legal Theory in Ireland (Dublin: Oak Tree Press, 1995),pp.163–181.

11 H.M. Warnock, Nature & Mortality: Recollections of a philosopher in public life (London: Continuum,2003), p.45.


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The status of the right to education in international human rights lawreflects the fundamental nature of the right that has been explained above.The right is included in a plethora of major human rights instrumentsand is made non-derogable in the International Covenant on Civil andPolitical Rights (ICCPR) and ICESCR. Furthermore, Hodgson arguesthat it can be asserted ‘‘with confidence’’ that at least two aspects of theright—the right to free primary education and the right to equality ofeducational opportunity—are so universally recognised and established thatthey have satisfied the stringent criteria necessary to acquire the status ofcustomary international law.12 If this assertion is correct, then it reflectsa globally held belief that the right to education is to be protected asa matter of priority. If it is accepted that education is one of the mostfundamental of all rights, this would indicate that it should be the subjectof the highest form of protection that the law can offer—an entrenchedand justiciable constitutional right. Moreover, there are also other aspectsof the nature of the right to education which lend themselves to such aproposition.

As well as being a most fundamental right, education has a particularlycomplex nature which makes it more difficult to protect than other humanrights. This difficulty is most unwelcome when viewed in light of thefundamental nature of the right, and it will be argued here that it alsoindicates that the right to education should be constitutionalised. There areseveral aspects of the right to education which contribute to this complexity.First, unlike other rights which involve a right of the individual and acorresponding duty of the State, education involves a third protagonist: theparents of the child in question. Parents are often involved in the exercise ofchildren’s rights; however, in the case of education, they are actually conferredwith independent rights of their own, which they are not merely exercisingon behalf of the child. This has greatly complicated the issue for the courts, asthe competing needs of three parties must be balanced in any given case. Eventhis is a somewhat simplistic view when one considers the pressures exertedby various interest groups, and in this regard the difficulties faced by a courtin adjudicating on an education dispute have been neatly summarised by NiallOsborough:

‘‘Education problems supply one of the litigation battlefields of themodern Republic. All the protagonists—the State, the churches, theteachers and their unions, the local community, the parents, the childrentoo—have individual interests they wish to see upheld. The difficultywhich so frequently precipitates the lawsuit is that in seeking to upholdthe interests of one set of protagonists, it is commonly impossible todo otherwise than to interfere with, and sometimes even substantiallydowngrade, the interests of one, if not more, of the other sets.’’13

12 D. Hodgson, The Human Right to Education (Aldershot: Dartmouth, 1998), pp.63–64.13 N. Osborough, ‘‘Review of Farry’s Education and the Constitution’’ [2000] XXXV Irish Jurist 416.

The difficulty of achieving a balance between the interests of children and parents has been discussed



A second unique aspect of the right to education is the fact that unlike otherrights, its exercise is compulsory.14 This has the result of creating rights andduties for all parties15—unlike other rights, which create a right for one partyand a corresponding duty for another. Of course, the fact that there are rightsand duties for three parties as opposed to two complicates this even further.

A further complication with regard to the right to education is that it isextremely difficult to classify into one of the so-called ‘‘generations’’ of rights.While many rights are labelled as being ‘‘civil and political’’ rights, ‘‘economicand social’’ rights or ‘‘group’’ rights, and some rights fall within two of thesegenerations, Manfred Nowak has remarked that education is probably the onlyright which reveals aspects falling under all three generations.16 Education isclearly a classic economic and social right, in the sense that it is a positiveentitlement to receive a service from the state. Its civil and political aspectincludes parental rights with respect to religious, philosophical and culturaleducation, as well as its connection, discussed above, to the ability to exercisecivil and political liberties such as the right to vote. Finally, in the context ofeducation as a group right, Natan Lerner has cogently observed:

‘‘As far as groups are concerned, the very preservation of the existence ofthe group may be related to the right to education . . . it is clear that agroup will see its future threatened if it is deprived of the right to ensureits members an education in accordance with its traditions or beliefs, orin its own language.’’17

This confusion between civil and political rights and economic and social rightsin particular creates a number of practical difficulties for the legal protectionof the right to education. The economic and social aspect of the right leads tomuch opposition to the notion of making it a justiciable element of a Bill of

in G. Van Bueren, ‘‘Education: Whose Right is it Anyway?’’ in L. Heffernan, ed., Human Rights: AEuropean Perspective (Dublin: Round Hall, 1994), pp.339 et seq. and O’Mahony, Educational Rights inIrish Law, pp.91–103.

14 The principle of compulsory primary education is set out in Art.26(1) of the UDHR, Art.13(2)(a)of the ICESCR and Art.28(1)(a) of the UNCRC, and has been held to be permissible under theECHR in Family H. v UK (1984) D.R. 37 at 105. In England and Wales, compulsory education isprovided for by ss.7–8 of the Education Act 1996. In Ireland, compulsory education is provided for byArt.42.3.2◦ of the Constitution and s.17(1) of the Education (Welfare) Act 2000.

15 Although compulsory education is normally enforced through the imposition of a duty on theparents rather than on the child, it may be argued that the child has a duty to be educated, and that legalsystems simply impose this duty vicariously on the parents of the child as it is legally expedient to do thisas opposed to attempting to impose criminal sanctions directly on the child for failing to attend school.See the contrasting discussion carried out on this point by M. Nowak, ‘‘The Right to Education’’ in A.Eide, C. Krause and A. Rosas, eds, Economic, Social and Cultural Rights: A Textbook (London: Kluwer,1995), p.197 and Van Bueren, ‘‘Education: Whose Right is it Anyway?’’, p.341. Whether or not thisargument is accepted, the point being made is still valid—the existence of rights and duties for bothparents and the State in respect of education certainly gives rise to added complications for the legalprovision for the right to education.

16 Nowak, ‘‘The Right to Education’’, p.196.17 N. Lerner, Group Rights and Discrimination in International Law (Dordrecht: Martinus Nijhoff, 1991),

p.147.


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Rights, due to the resource implications of such a step.18 It is for this reasonthat the right was originally omitted from the ECHR, and when subsequentlyincluded, it was formulated in negative terms which do not require the Stateto provide any education at all, stating that ‘‘[n]o person shall be denied theright to education’’.19

The limited nature of the right to education under Art.2 of Protocol No.1to the ECHR would seem to stem from this confusion in its classification;its eventual inclusion in what is largely a civil and political rights instrumentwas very much in a civil and political format—i.e. a right not to be deniedsomething—and this overlooked the economic and social aspect of the right,undermining its scope and effectiveness. In the Irish context, the right overcamethe initial hurdle of inclusion in the Constitution; however, its complex naturehas led to its occupying an anomalous position within the fundamental rightsscheme of the Irish Constitution,20 which has in turn had negative ramificationsfor the remedies available for a breach of the right, thus undermining the trueextent of its justiciability.21 Thus it can be seen how confusion surrounding theclassification of the right to education as ‘‘civil and political’’ or ‘‘economic andsocial’’ can, indirectly, have a detrimental impact on the practical enforcementof the right.

In summary, therefore, education is a right which falls under all threegenerations of rights; it is tripartite and its exercise is compulsory. It has beenshown above how the complexity of these aspects of the right to educationcreates practical difficulties for the legal protection of the right. The mostfundamental nature of the right, which was set out above, dictates that itis imperative that these difficulties be overcome, and that it is essential thatthe right to education be given the highest form of protection that the lawcan offer. Furthermore, any entrenched constitutional right must be wellformulated; analysis of the provisions of the Irish Constitution shows howa badly formulated constitution can, when entrenched, lead to intractable

18 Some commentators would dispute whether economic and social rights should ever be legallyprotected, or even whether they can properly be described as ‘‘rights’’; see, e.g. M. Cranston, ‘‘HumanRights, Real and Supposed’’ in D. Raphael, ed., Political Theory and the Rights of Man (Bloomington:Indiana University Press, 1967), pp.43–53. The contrary argument has been well set out by G.J.H. VanHoof, ‘‘The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some TraditionalViews’’ in P. Alston and K. Tomasevski, eds, The Right to Food (Dordrecht: Martinus Nijhoff, 1984),pp.97–110.

19 The limited nature of the right to education under Art.2 of Protocol No.1 to the ECHR can beseen in cases such as the Belgian Linguistic Case (1979–80) 1 E.H.R.R. 252 and McIntyre v UK (App.No. 29046/95), October 21, 1998. See further Mountfield, ‘‘The Implications of the Human RightsAct 1998 for the Law of Education’’ [2000] E.L.J. 146.

20 The education rights under Art.42 of the Irish Constitution are the only economic and socialrights to be given a justiciable provision in the fundamental rights scheme of the Constitution; othereconomic and social issues such as housing are relegated to the non-justiciable ‘‘Directive Principlesof Social Policy’’ of Art.45 which itself expressly provides that the principles set down therein ‘‘shallbe the care of the Oireachtas [Irish Parliament] exclusively, and shall not be cognisable by any Courtunder any of the provisions of this Constitution’’.

21 See TD v Minister for Education [2001] 4 I.R. 259, as discussed in C. O’Mahony, ‘‘Education,Remedies and the Separation of Powers’’ (2002) 24 D.U.L.J. 57.



difficulties,22 and indeed that even reasonably well formulated provisions canbe interpreted in an undesirable way.23

While these latter points could be taken as indicating that it is betternot to constitutionalise the right to education, the difficulties of drafting arenot insurmountable, and while the danger does exist that provisions willbe badly interpreted, the same can be said of all legal sources. Ultimately,the benefits of the protection provided by an entrenched and justiciableconstitutional right to education—particularly in respect of resources (as willnow be discussed)—probably outweigh the potential difficulties which mayarise and which could, in any event, be ironed out through a combination ofamendment and alternative interpretation.

Turning away from these theoretical reasons for constitutionalising the rightto education to more practical matters, perhaps the most compelling reasonthat can be offered for placing the right to education on a constitutional footingrelates to the nature of the legal duty which such a provision places on the Stateto provide resources. If a constitutional right to education is justiciable and isdrafted in a manner free from resource constraints, as is the case under the IrishConstitution,24 this would shield educational funding from the political andeconomic demands of any given moment.

The vindication of the right to education is, of course, expensive, particularlyin the context of special educational needs. It will always be an extremelytempting target for funding cutbacks in times of economic hardship or whenpolitical priorities lie elsewhere. This is a situation which should be preventedat all costs. In purely economic terms, it should be noted that educationcontributes enormously to the economic development of society; any attemptto save money by cutting funding to education is simply a false economy.25

An even greater danger applies to special educational provision as the mostexpensive type of education per head, but also the type which affects the leastnumber of people; its expensive nature and lack of electoral impact dictatethat it will always be a prime target for spending cutbacks. In human terms,given the importance of education to the dignity of individuals with specialeducational needs, this should not be allowed to happen; furthermore, it should

22 A prime example of this is the exclusion of extra-marital families from the ambit of protection ofArts 41 and 42, on which see O’Mahony, Educational Rights in Irish Law, pp.44–56.

23 See, e.g. the discussion of the age-limitations on entitlements in F. Ryan, ‘‘Disability and theRight to Education: Defining the Constitutional ‘Child’’’ (2002) 24 D.U.L.J. 96; the discussion of thebalance between the interests of children and parents in O’Mahony, Educational Rights in Irish Law,pp.91–103; and the discussion of remedies and the separation of powers in O’Mahony, ‘‘Education,Remedies and the Separation of Powers’’ (2002) 24 D.U.L.J. 57.

24 It has been held on a number of occasions that resource considerations do not apply to the State’sduty to vindicate constitutional rights—see, e.g. Costello J. in O’Reilly v Limerick Corp [1989] I.L.R.M.181 at 193 and Barr J. in Sinnott v Minister for Education [2001] 2 I.R. 545 at 568.

25 See J. Kelly, ‘‘Education and the Irish State’’, annexed to G. Whyte, ‘‘Education and theConstitution: Convergence of Paradigm and Praxis’’ [1990–92] XXV-XXVII Irish Jurist 69 at 84–85:‘‘. . . a modern state, which cannot escape the consequences of modern techniques and modernambition, is exposing its population to poverty and exposing itself to disintegration unless it maintains acertain level of universal education . . . The State cannot allow its citizens to remain ignorant, becausefor very good reasons it cannot afford to.’’


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be pointed out that there is research which suggests that intensive educationeven for severely disabled children may have economic benefits in the longterm.26

Under a simple legislative framework, it is all too easy for a government toreduce the level of educational provision which is made available. Educationlegislation itself often contains an in-built resource qualification; however,even if it does not, express or (possibly) even implied repeal of the statute by asimple parliamentary majority will suffice to make any reductions in provisionwhich the government seeks. The presence of a justiciable constitutional rightto education which is free from resource constraints provides protection againstthis possibility, as it cannot be eroded as easily as legislation, and it also providesa standard against which legislation can be judged. Furthermore, and mostsignificantly, a lack of resources will not justify a failure to vindicate the right.This advantage was neatly summarised in relation to the Irish Constitution byBarr J. in the High Court in Sinnott v Minister for Education:

‘‘A citizen’s constitutional right must be responded to by the State in full.A partial response has no justification in law, even in difficult financialcircumstances which may entail the raising of new tax revenue to meetsuch claims—happily a situation which has not pertained for severalyears.’’27

In practical terms, few more compelling arguments could be presented infavour of an entrenched and justiciable right to education.

To summarise, therefore, the right to education is a most fundamental humanright; however, its vindication is made extremely difficult by its complex nature.The combination of these factors indicate that it is desirable that the right begiven the highest form of protection that the law can offer, which is anentrenched and justiciable constitutional right to education. Furthermore, sucha provision, if formulated in a manner which is free from resource constraints,can ensure that the necessary resources are always available to vindicate theright to education for all children, and prevent the political and economicdemands of the day interfering with education funding. These are all importantreasons in favour of the adoption of a constitutional right to education,and in considering special educational needs law in the Irish context, thesearguments can easily be made in favour of retaining the constitutional rightto education in the Irish Constitution. However, in England and Wales, thematter is somewhat more complicated, given that that jurisdiction falls underthe unwritten UK constitution and the doctrine of parliamentary sovereignty.

26 D. Boyle and E. Burton, ‘‘Making Sense of SEN: The Role of the Voluntary Sector’’ [2004]E.L.J. 15, who comment at 16 and 24 on the financial cost to society of failing to make adequateeducational provision for children with special educational needs. They cite research from the Centrefor the Economics of Mental Health (K. Jarbrink, M. Knaap et al., The Cost of Autistic Spectrum Disorder,Foundation for People with Learning Disabilities, 2000) which suggests that the lifetime cost to thepublic purse of a child with autism is about £3 million, but that ‘‘even moderate improvements ineducational provision could potentially result in major savings in later living costs’’.

27 [2001] 2 I.R. 545 at 568.



Thus, there are a number of important arguments which have been presentedagainst a constitutional bill of rights which now fall to be considered.

Arguments against a constitutional right to education

In the United Kingdom, a justiciable and entrenched constitutional right toeducation, of the sort currently available in Ireland, could only be fully achievedthrough a constitutional revolution involving the adoption of an entrenchedbill of rights and the abolition of parliamentary sovereignty. While there hasrecently been some discussion of the possibility of drafting a new bill of rightsfor the United Kingdom,28 a complete constitutional revolution of this sortwould seem to be unlikely to occur in the near future, particularly in lightof the comparatively recent enactment of the Human Rights Act 1998. Priorto the enactment of the 1998 Act, a lengthy debate occurred in the UnitedKingdom as to whether, and in what form, a bill of rights should be adopted.This recently revived debate has spawned an enormous volume of academicliterature over the years and a full examination of this material would be faroutside the scope of the present discussion. However, it is useful to revisit themajor points of contention in this debate in order to examine the argumentsagainst taking such a step and consider whether they indicate that perhapsIreland might be better off without the entrenched and justiciable right toeducation which is currently in place.

The value which the doctrine of parliamentary sovereignty seeks to protectis, broadly speaking, democracy.29 The rationale underlying the doctrinerests on the premise that Parliament, as the democratically elected organ ofstate, represents the will of the people and exercises power on their behalf.30

Furthermore, Parliament should not be subject to any limitations by unelectedbodies such as the judiciary, since this would conflict with democracy andundermine it. This rationale was set out by Lord Simon of Glaisdale in BritishRailways Board v Pickin, where his Lordship stated:

28 See JUSTICE, A Bill of Rights for Britain? (JUSTICE, London, 2007) and F. Klug, ‘‘A Bill ofRights: Do We Need One or Do We Already Have One?’’ [2007] P.L. 701. The Joint Committee onHuman Rights is currently inquiring into whether a Bill of Rights is needed for Britain and issued acall for evidence in this regard on May 22, 2007.

29 See A. Bradley and K. Ewing, Constitutional and Administrative Law, 13th edn (London: Longman,2003), p.75 for a discussion of the connection between parliamentary sovereignty and representativedemocracy.

30 Historically, parliamentary sovereignty developed as a result of the shift of power from a hereditarymonarch to an elected Parliament. A.V. Dicey, Introduction to the Study of the Law of the Constitution,10th edn (London: MacMillan & Co Ltd, 1960), hinted at this at p.470 when stating that parliamentarysovereignty came about through a ‘‘gradual transfer of power from the Crown to a body which hascome more and more to represent the nation’’. While it may have originally have been a mechanismfor subjugating the Royals to the will of Parliament, the ultimate rationale underlying the doctrineis surely that of protecting democracy. Dicey would seem to suggest as much (Dicey, Introduction tothe Study of the Law of the Constitution, (1960)) at pp.72–74 where he sets out the distinction betweenthe legal sovereignty of Parliament and the political sovereignty of the electorate, stating that ‘‘thearrangements of the constitution are now such as to ensure that the will of the electors shall by regularand constitutional means always in the end assert itself as the predominant influence in the country’’.


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‘‘The system by which, in this country, those liable to be affected bygeneral political decisions have some control over the decision-makingis parliamentary democracy. Its peculiar feature is the sovereignty ofParliament. This involves that, contrary to what was sometimes assertedbefore the 18th century, and in contradistinction to some other democraticsystems, the courts in this country have no power to declare enacted lawto be invalid.’’31

Under this line of argument, therefore, judicial review of legislation pursuantto a bill of rights is undemocratic, as is the entrenched bill of rights whichestablishes the mechanisms for it. Does this imply that the presence of ajusticiable constitutional right to education in an entrenched bill of rights,which includes a mechanism for judicial review of legislation, serves toundermine democracy in Ireland?

It is submitted that there are a number of points that can be made which gotowards proving that a constitutionalised bill of rights, and more particularly aconstitutionalised right to education, is not undemocratic in itself, and indeedarguably provides a greater level of protection for democracy than the doctrineof parliamentary sovereignty. First of all, the argument that it is undemocraticfor a bill of rights to allow the courts to overrule the will of Parliament, whichis taken as representing the will of the people, is misconceived. In the Irishcontext, one point immediately presents itself to undermine this argument:the Constitution which allows the courts to do so was, after all, voted uponby the people in the 1937 plebiscite, and in the words of the Preamble theyadopted, enacted and gave it to themselves. This direct vote of the peoplecan surely be considered to be more representative of their views than anyvote in Parliament, bound as it is by party political lines and the whip system.In the absence of any amending referendum in the interim, the text of theConstitution must be taken by the courts as accurately representing the will ofthe people—even more so than the view of Parliament. A direct vote of thepeople is, in spite of its own imperfections, perhaps one of the purest of allforms of democracy.

A second argument can be made to rebut the contention that a bill of rightsis undemocratic. The meaning of the term ‘‘democracy’’ is a vast issue in itself,which could never be fully considered here; however, it is surely reasonablyclear that the ordinary meaning of the word, in its everyday usage in Westernsociety, implies far more than a mere headcount. This is an issue which hasbeen taken up by many eminent commentators, foremost among them RonaldDworkin:

‘‘When the eminent French historian Francois Furet came recently toBritain to lecture on the occasion of the bicentennial of the FrenchRevolution, he said that the signal triumph of democracy in our time isthe growing acceptance and enforcement of a crucial idea: that democracyis not the same thing as majority rule, and that in a real democracy libertyand minorities have legal protection in the form of a written constitution

31 [1974] A.C. 765 at 798.



that even Parliament cannot change to suit its whim or policy. Underthat vision of democracy, a bill of individual constitutional rights ispart of fundamental law, and judges, who are not elected and who aretherefore removed from the pressures of partisan politics, are responsiblefor interpreting and enforcing that bill of rights as they are for all otherparts of the legal system.’’32

Similar sentiments have been expressed by H.L.A. Hart,33 Michael Zander,34

Sir Stephen Sedley35 and Sir John Laws:

‘‘It is a condition of democracy’s preservation that the power of ademocratically elected government—or Parliament—be not absolute . . .the citizen’s democratic rights go hand in hand with other fundamentalrights; the latter, certainly, may in reality be more imaginably at risk, inany given set of political circumstances, than the former. The point is thatboth are or should be off limits for our elected representatives. They arenot matters upon which, in a delegated democracy—a psephocracy—theauthority of the ballot-box is any authority at all.’’36

Indeed, this issue has been the subject of judicial comment in Ireland; in theseminal case of Ryan v Att Gen, Kenny J. in the High Court observed thatArt.40 of the Irish Constitution is:

‘‘. . . in many ways the most important in the Constitution, for Art.5declares that Ireland is a democratic State and what can be more importantin a democratic State than the personal rights of the citizens . . .’’37

Even accepting that a bill of rights is not of itself undemocratic, but is in fact animportant element of a democratic society, there are those who would arguethat the inclusion of a justiciable economic and social right such as the rightto education would be undemocratic. This relates to the fact that such a rightwould tie the hands of elected officials as to the allocation of resources; it isargued that this is a matter which is properly the domain of elected officialssince they, unlike the courts, are able to consider the competing demands ofall that may claim the resources, rather than the claims of individual litigantsin isolation.38 Again, however, it is possible to rebut the argument that theright to education should be excluded from a bill of rights by recalling that,as noted above, education supports democracy by enhancing the ability ofthe electorate to make fully informed decisions. A comprehensive study onthe entire issue of the constitutionalisation of economic and social rightshas been conducted by Cecile Fabre; she argues that since the right to anadequate education is a fundamental feature of the concept of democracy and

32 R. Dworkin, A Bill of Rights for Britain (London: Chatto & Windus, 1990), p.13.33 H.L.A Hart, Law, Liberty, and Morality (London: OUP, 1963), pp.77–81.34 M. Zander, A Bill of Rights?, 4th edn (London: Sweet & Maxwell, 1997), p.viii.35 Sir Stephen Sedley, ‘‘The Common Law and the Constitution’’ in Lord Nolan and Sir Stephen

Sedley, eds, The Making and Remaking of the British Constitution (London: Blackstone Press, 1997), p.5.36 Sir John Laws, ‘‘Law and Democracy’’ [1995] P.L. 72 at pp.85–90.37 [1965] I.R. 294 at 310.38 See, e.g. M. Walzer, ‘‘Philosophy and Democracy’’ (1981) 9 Political Theory 379 at pp.391–392.


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a necessary condition for its functioning and survival, constitutionalising thatright does not therefore conflict with democracy.39 Her study concludes thatconstitutionalising rights such as minimum income, housing and healthcaremay conflict with democracy, whereas constitutionalising the right to educationactually supports democracy.40 It is interesting to note that this is the exactsituation which pertains under the Irish Constitution.

In light of the above, it is submitted that the arguments which have beenmade against the adoption of a bill of rights which includes a justiciable right toeducation which are based, directly or indirectly, on the ground of a conflictwith democracy are ill-founded. The presence of an entrenched bill of rightsin the Irish Constitution, which includes a justiciable right to education andpowers of judicial review of legislation, does not conflict with democracy, andindeed actually promotes democracy in ways which parliamentary sovereigntynever could. However, the discussion does not end there; apart from theissue of democracy, there are other arguments which have been made againstsupplanting parliamentary sovereignty with an entrenched bill of rights.

Lord Lloyd of Hampstead has argued that the legislature is a better forumthan the courts for the protection of rights and for dealing with grievancesarising from an infringement of rights. Among the reasons offered for thisargument is the notion that the legislature is more accessible than the courts tothe average man on the street.41 This line of argument is immediately opento attack: in fact, quite the opposite is true in practice. While the majorityof people are able (eventually) to take a case to court with the support oflegal aid or voluntary groups, the political process is extremely inaccessible toindividuals and quite often to groups as well. In this context Gerry Whytehas correctly observed that, ‘‘if one moves from the realm of political theoryto the world of political reality, it is quite clear that some minorities cannot,for whatever reason, secure adequate protection for their interests through ourpolitical system’’.42 Lynch and Connolly have identified the reasons for this asbeing, inter alia, insufficient numbers to cause any real impact in any givenelectoral constituency and the geographical dispersal of members of vulnerableminority groups such as the disabled.43

These remarks on the inequities of the political system can be usefullycontrasted with the remark made by David Gwynn Morgan that ‘‘[t]he judges’strong instinct for fairness has led to a number of decisions [in Ireland]protecting groups likely to be disadvantaged’’.44 Zander has also taken thispoint up, stating:

39 C. Fabre, Social Rights under the Constitution (Oxford: Clarendon Press, 2000), pp.4–5 and 125–126.40 Fabre, Social Rights under the Constitution, pp.184–185.41 Lord Lloyd of Hampstead, ‘‘Do we need a Bill of Rights?’’ (1976) 39 M.L.R. 121 at p.127.42 G. Whyte, ‘‘Travellers and the Law’’ (1988) 10 D.U.L.J. 189 at p.196. Similar sentiments are

expressed by G. Quinn, ‘‘Rethinking the Nature of Economic, Social and Cultural Rights in the IrishLegal Order’’ in C. Costello (ed.), Fundamental Social Rights: Current European Legal Protection & theChallenge of the EU Charter on Fundamental Rights (Dublin: Irish Centre for European Law, 2000), p.41.

43 K. Lynch and A. Connolly, ‘‘Equality before the Law’’ in Report of the Constitution Review Group(Dublin: Stationery Office, 1996), p.588.

44 D.G. Morgan, A Judgment Too Far? Judicial Activism and the Constitution (Cork: Cork UniversityPress, 2001), p.106.



‘‘The vested interest of all government is to preserve the normal way ofdoing things and to resist pressure for change . . . Legitimate pressure canbe generated through litigation under a bill of rights . . . Legislation orexecutive action on human rights matters is frequently affected by thepolitical exigencies of the moment. Often it cannot be achieved at all,or only partially. Litigation to enforce the bill of rights may be easier tomobilise than either legislation or executive action.’’45

Zander continues by arguing that judges are better equipped and more readyto find a remedy for grievances than politicians or civil servants; in this contexthe points to the experience of civil liberties lawyers in the United States.having more success in the courts than they ever had in either state or federallegislatures.46 It is submitted that this is a far more realistic appraisal of thesituation than that offered above by Lord Lloyd, and indeed is one whichhas been backed up by experience in recent years in Ireland. The enactmentof the Education for Persons with Special Educational Needs Act 2004 wasnot brought about by political lobbying by parents or interest groups, butas a direct result of persistent high-profile constitutional litigation on footof the continuing failure of the State to vindicate the right to education ofchildren with special educational needs.47 In the absence of the constitutionalright, such litigation could not have taken place, which would have left theaggrieved children without any remedy whatsoever; furthermore, and moresignificantly for the purposes of the present discussion, the impetus whichdrove the enactment of the legislation would have been absent.

Finally, it is necessary to consider the possibility that the existence of ajusticiable constitutional right to education may have the effect of prioritisingthe needs of the individual over the needs of the collective. This point has beentaken up by Ann Blair, who, basing her analysis on the limited right-basednature of the special educational needs statementing process in England andWales,48 expresses concern that a rights-based approach to special educational

45 Zander, A Bill of Rights?, p.65.46 Zander, A Bill of Rights?, p.66.47 See, inter alia, O’Donoghue v Minister for Health [1996] I.R. 20; FN v Minister for Education [1995]

1 I.R. 409; Comerford v Minister for Education [1997] 2 I.L.R.M. 134; Sinnott v Minister for Education[2001] 2 I.R. 545; TD v Minister for Education [2000] 3 I.R. 62 (High Court); [2001] 4 I.R. 259(Supreme Court). G. Hogan, ‘‘Directive Principles, Socio-Economic Rights and the Constitution’’[2001] XXXVI Irish Jurist 174 comments at p.184 that ‘‘it is not an exaggeration to say that the courtshave almost been overwhelmed with hundreds of actions dealing with a huge range of educationalissues’’.

48 The legal framework for special educational needs is set out in Pt IV of the Education Act 1996,as amended by the Special Educational Needs and Disability Act 2001 and the Education Act 2002.For a general overview of this framework see S. Oliver and L. Austen, Special Educational Needs andthe Law (Bristol: Jordans, 1996) or J. Friel and D. Hay, Special Educational Needs and the Law (London:Sweet & Maxwell, 1996). Children whose special education needs are such that the local educationauthority is required, under s.324 of the Education Act 1996, to determine the special educationalprovision that is to be made for the child, are made subject to a statement of special educational needswhich sets out the special educational provision that is to be made for that child. The local educationauthority owes a personal duty to the child to arrange the special educational provision specified in thestatement, and consequently the child has a statutory right to that provision. On the other hand, a largenumber of children with less severe special educational needs are not made subject to a statement of


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needs may result in the needs of the few outweighing the needs of the many.49

As will be explained in more detail below, this may occur where the fullvindication of the rights of some children results in a lack of resources for thevindication of the rights of those who do not go to the same lengths to securethem.

Blair’s argument is based upon an application of welfare law analytical modelsto the legal framework for special educational needs in England and Wales.A full discussion of these theories would be outside the scope of the currentdiscussion, which is intended only to address the issue of balancing individualand collective interests in the context of the operation of a constitutional rightto education and the impact of such a provision on the legal provision for specialeducational needs. Blair makes particular use of a classification which was setout by Jerry Mashaw, under which there are three models of administrativesystems designed to allocate resources.50 The Bureaucratic Rationality modelinvolves matching a claimant’s circumstances to pre-determined categories ofneed. The Professional Treatment model involves using professional judgmentto make individual assessments of need. Finally, the Moral Judgment modelinvolves adversarial claims against resources which are judged using judicialconcepts of fairness. Blair proceeds on the basis of Michael Adler’s simplificationof Mashaw’s classification, which states that the first model relies on a systemof rules, the second on a system of discretion and the third on a system ofrights.51

In the context of the system in England and Wales, the rights-based modelcan really only be seen in operation in relation to statemented children who,if not provided with their entitlements under their statement, can take acase to the Special Educational Needs and Disability Tribunal or the courts.The all-important assessment procedure would seem to be predominantly anillustration of the discretion-based Professional Treatment model, while theprovision made for unstatemented children in accordance with the Code ofPractice is perhaps a combination of the Professional Treatment model withthe rules-based Bureaucratic Rationality model. The Irish system,52 with itsoverarching constitutional right and statutory assessment scheme, would seem

special educational needs, and have no enforceable statutory right to special educational provision. SeeR. v Secretary of State for Education and Science Ex p. Lashford [1988] 1 F.L.R. 72 and R. v Harrow LBCEx p. M [1997] E.L.R. 62, as well as L. Lundy, ‘‘Stating a case for the ‘unstatemented’—children withspecial educational needs in mainstream schools’’ [1998] 10 C.F.L.Q. 39.

49 A. Blair, ‘‘Rights, duties and resources: the case of special educational needs’’ (2000) 12 E. & L.177, particularly at p.179.

50 J.L. Mashaw, Bureaucratic Justice: managing social security disability claims (London: Yale UniversityPress, 1983), pp.23–34, discussed by Blair, ‘‘Rights, duties and resources’’ (2000) 12 E. & L. 177 atpp.181–184.

51 M. Adler, ‘‘Decision making and appeals: social security in need of reform’’ (1997) 68 PoliticalQuarterly 388 at 394–396, cited by Blair, ‘‘Rights, duties and resources’’ (2000) 12 E. & L. 177 at p.181.

52 The system in Ireland is built on the foundation of a constitutional right to education whichincludes a right to special educational provision, to which has now been added a detailed statutoryframework for assessing educational needs and preparing enforceable education plans to meet thoseneeds (which are similar to statements in England and Wales). See O’Mahony, Educational Rights inIrish Law, pp.156–199.



by and large to be a combination of the rights-based Moral Judgment modelwith the discretion-based Professional Treatment model. These models donot, of course, fit the systems perfectly,53 but nevertheless are useful as broadanalytical tools.

Essentially, Blair’s point is that a rights-based approach results in moreinequality than either the rules-based or discretion-based approach, as noteveryone is able to access the adversarial system in the same way or to the sameextent.54 Those who successfully engage in the adversarial system receive totalvindication of their rights, leaving fewer resources available to meet the needsof those who do not take a case. The court or tribunal which determines thecase is not required to consider the needs of those who are not a party to thecase, even though the allocation of resources resulting from its decision mayultimately impact on those needs by removing a potentially sizeable portion ofresources from a limited pot. Blair cites Jack Tweedie’s explanation of this point:

‘‘When rights are interpreted by decision-makers focused on individualclaims, as judges are expected to be, individual claims are givennear-absolute precedence over collective policy considerations, oftenundermining the programme’s pursuit of collective goals.’’55

Furthermore, the adversarial process itself is expensive and often wasteful ofresources which, rather than being spent fighting claims, could be releasedto be spent on meeting needs instead. Additionally, the knowledge that thiscourse of action is available to the parents of statemented children means thatlocal education authorities will generally make the provision detailed in thestatement, often at great expense. In the process, they will divert resourcesaway from unstatemented children, thereby prioritising the needs of a smallnumber of children over those of the vast majority.

Having rejected exclusive reliance on the rights-based model, Blairacknowledges the difficulties surrounding the alternative models, and inparticular the need to separate professional judgment from the holder of thepurse-strings, in order to avoid a situation where ‘‘some need will be unmetbecause it is not serious enough to attract scarce resources rather than becauseit is not genuine’’.56 Consequently, she advocates the pursuit of collectivegoals through a combination of a discretion-based system with a system ofindependent review (which she distinguishes from appeals). Blair suggests thatthis can be achieved in England and Wales through school-based initiativesdesigned to move resources away from the statementing process, targetingthem instead at attempting to address needs before they become so acute as tomerit the preparation of a statement.57 However, Blair concedes that:

53 See Blair, ‘‘Rights, duties and resources’’ (2000) 12 E. & L. 177 at pp.183–185.54 Blair, ‘‘Rights, duties and resources’’ (2000) 12 E. & L. 177 at pp.186–187.55 J. Tweedie, ‘‘Rights in social programmes: the case of parental choice in schools’’ [1986] P.L. 407

at p.434, cited by Blair, ‘‘Rights, duties and resources’’ (2000) 12 E. & L. 177 at p.188. A similar pointis made by Fabre, Social Rights under the Constitution, p.176.

56 Blair, ‘‘Rights, duties and resources’’ (2000) 12 E. & L. 177 at p.190. On this point, see furtherWarnock, Nature & Mortality, pp.56 and 63–64.

57 Blair, ‘‘Rights, duties and resources’’ (2000) 12 E. & L. 177 at pp.187–189.


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‘‘[I]t will be important to build in safeguards to deal with the difficulty ofensuring that weakening the hold of individual rights does not mean thatwe are persuaded to accept levels of provision which are inadequate tomeet genuine need.’’58

This latter point is of some considerable importance when operating in a systemwhere resources are the dominant consideration in assessing special educationalneeds. Blair’s entire analysis proceeds on the basis of an acceptance that overallresources will always be set at a fixed level which may often be insufficient tomeet overall demand. This is where the rights-based model which Blair rejectsis in fact critical to the balancing of individual and collective goals. Since thecrux of this issue is resources, the solution to the problem identified by Blaircan indeed be found in the rights-based model which is in place in Ireland.A constitutional right to education for children with special educational needswhich rises above resource considerations, as is the case in Ireland, places a con-stitutional duty on the State to make available whatever resources are necessaryto make full and effective provision for the educational needs of all children.

The major practical impact of the presence of such a right is that the statutoryframework for special educational needs in Ireland has been formulated so as tobe rights-based and demand-led. Resources are provided in response to whathas been determined to be required by assessments and education plans, andthe purse-strings have been separated from those who exercise discretion.59

In theory, therefore, this legal framework should ensure the availability of theresources necessary to fully meet the special educational needs of all childrenwho have accessed the system. This can be contrasted with the system inEngland and Wales, which is largely discretion-based and supply-led, andwhere (as Blair herself has identified) the current system involves decisionsregarding levels of provision being made within the confines of a limited pool ofresources. This results in many children, whether statemented, unstatementedor indeed not having special educational needs at all, having to settle forless than full provision as the necessary resources have simply not been madeavailable under the legal framework.

Blair concedes that regardless of which model is employed, the makingof adequate provision is ultimately dependent on the existence of adequatebudgets.60 These are far more likely to be brought about by a constitutionalright which is free from resource constraints. A constitutional imperative ofthis nature requires the provision of sufficient resources to allow for fullprovision to be made for the needs of every individual child. Thus it avoids thedifficulty of attempting, within the constraints imposed by operating from alimited pot of resources, to balance this goal with addressing the requirementsof the collective. The Irish framework, although currently slightly flawed

58 Blair, ‘‘Rights, duties and resources’’ (2000) 12 E. & L. 177 at p.190.59 See ss.10 and 13 of the Education for Persons with Special Educational Needs Act 2004, as

discussed in O’Mahony, Educational Rights in Irish Law, pp.184–199.60 Blair, ‘‘Rights, duties and resources’’ (2000) 12 E. & L. 177 at p.189.



in this respect,61 nevertheless points to a way in which a combination ofa constitutional right and a legislative framework can make legal provisionfor adequate resources for all, without being subject to budget limitations.This may sound unrealistically expensive, but as already discussed, it is moneywell spent, both in human and economic terms; moreover, both the UnitedKingdom and Ireland can afford it. The provision of the necessary resourcesis ultimately a question of political will, but a constitutional right which isentrenched, justiciable and free from resource constraints makes it far moredifficult for politicians to avoid making the resources available.

In summary, therefore, the main criticisms which could be made of anentrenched bill of rights which includes a justiciable right to education arebased on notions of democracy, the suitability of the legislative branch ofgovernment to the protection of rights and concerns relating to individualrights undermining the collective good. However, the discussion above hasshown that these arguments do not suggest that the existence of a justiciableright to education in the Irish Constitution is undesirable—particularly whenweighed against the earlier discussion of the value of a constitutional right toeducation. Consequently, the fact that such a provision exists in Ireland is tobe applauded rather than criticised.

The discussion thus far in this paper has demonstrated that there are manyreasons why the right to education should be constitutionalised, and that thearguments to the contrary are somewhat misconceived or, at the very least,unsuitable for application in the context of the right to education. However,this is not to suggest that a constitutional right to education is the completesolution; as will now be discussed, practical experience in Ireland has shown thata constitutional right alone is completely insufficient to ensure that adequateprovision is made for children with special educational needs.

Is a constitutional right to education sufficient on its own?

In considering whether a constitutional right to education, without any furtherlegislative provision, is sufficient to ensure the full vindication of the right,it is possible to draw upon 60 years of practical experience of this exactsituation in Ireland and answer the question with an emphatic ‘‘no’’. TheIrish experience provides a graphic and unequivocal illustration of the need formore than a mere constitutional right; a highly detailed legislative frameworkis required to guide its operation and to give teeth to the right. Constitutionaldocuments, by their very nature, should state matters at a level of generalitythat is entirely inappropriate to the vastly complex area of education.62 The

61 A slight technical point in relation to the drafting of s.13 of the Education for Persons with SpecialEducational Needs Act 2004 has left some slight doubt as to whether the terms of the Act will proveto be fully enforceable in the event of a court dispute; see O’Mahony, Educational Rights in Irish Law,pp.256–259.

62 The Report of the Constitution Review Group (Dublin: Stationery Office, 1996), states at p.355that ‘‘the Constitution should, where possible, endeavour to state propositions at a sufficient level ofgenerality to permit evolution and development’’.


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contrasting demands of the various levels and types of education, from pre-school to higher level, and particularly the field of special educational needs,require a highly detailed framework in which to operate. The Irish experienceof the past decade in particular has illustrated the difficulties which can arisefrom relying solely on the constitutional provisions.

In the absence of a detailed legislative framework to guide the operation ofthe constitutional right, education has remained very much in the executivefield, being regulated by a series of circulars and memoranda issued by theDepartment of Education. This has led directly to two major difficulties inpractice which have had the effect of undermining the right to education of thechild. First, demarcation disputes have arisen between government departmentsas to who is responsible for funding various aspects of educational provisionsuch as transport, psychological assessments and residential care. Given thelevel of expense involved in these matters, the Department of Education hasbeen all too eager to try to pass the buck to the Department of Healthand the Department of Transport. In turn, these departments feel that theyare being asked to take on expenses rightly belonging to the Department ofEducation. This is a particular danger in the resource intensive area of specialeducational needs, where a variety of support services are required and theamount of money necessary to vindicate rights is disproportionately larger thanthe number of votes which will be lost as a result of a failure to make adequateprovision.

These disputes between departments tend to descend into protractedwrangling, giving rise to lengthy delays in making adequate provisionfor children; delays which may cause irreparable damage to a child withspecial educational needs, since it is well established that early diagnosis andintervention are of paramount importance in relation to learning difficultiessuch as autism and dyslexia. Furthermore, if the law imposes age limits onentitlements to educational provision (as it does in both England and Wales andIreland),63 delays in meeting a child’s needs cause that child to lose irrevocablypart of his limited period of entitlement to free provision. Referring to oneseries of such delays, Kelly J. in the Irish High Court characterised the situationas a ‘‘scandal’’ and stated that: ‘‘The addressing of the rights of the young peoplethat I have had to deal with appears to be bogged down in a bureaucraticand administrative quagmire.’’64 The advantage of a legislative framework insuch a scenario is to stipulate clearly—in legally binding terms—the areas ofresponsibility of each government department.65 This prevents the crucial issue

63 See s.312(5) of the Education Act 1996 and Wakefield Metropolitan District Council v E [2002]E.L.R. 203 in England and Wales, and s.1 of the Education for Persons with Special Educational NeedsAct 2004 and Sinnott v Minister for Education [2001] 2 I.R. 545 in Ireland.

64 DB v Minister for Justice [1999] 1 I.L.R.M. 93 at 104.65 In Ireland, the Education for Persons with Special Educational Needs Act 2004 addresses this issue

by assigning responsibility in cases where it is possible to do so and establishing a dispute resolutionmechanism to deal with cases where the issue is unclear. Section 7 sets out the division of responsibilitybetween health boards and the National Council for Special Education. Section 7(5) provides that if adispute arises between a health board and the Council as to which of them can more effectively provideparticular services identified as being required in respect of a child by an assessment or an education



of educational provision from becoming a political football which departments,having decided that special needs education costs more money than votes, arecontent to pass back and forth between themselves.

The other major difficulty which has arisen from the absence of a legislativeframework relates to the issue of remedies. This is a highly complex issue, andno more than a brief explanation is possible in the present context.66 As notedabove, the absence of legislation in Ireland has caused education to remain inthe executive field as a matter of policy rather than of statutory obligation. Evenin the United Kingdom, where there is a relatively loose separation of powers,the courts will be reluctant to interfere with matters of policy.67 However,in Ireland, where there is a far tighter separation of powers set down by thewritten Constitution, the result has been the decision of the Supreme Courtin TD v Minister for Education68 that it is impermissible to grant mandatoryinjunctive relief compelling a Minister to provide the resources necessary todischarge the State’s constitutional obligations.

The flaws in this decision have been set out by the present author elsewhere69;for now, it is sufficient to recall that the other available remedies—damagesand declaratory relief—are generally inadequate, and that mandatory reliefis often essential to the vindication of the rights of the child. Crucially, itwas commented by one of the judges involved in the TD decision that thedifficulties which arose in relation to the separation of powers would not ariseif a legislative framework was in place,70 and this would seem to have beenconfirmed in principle.71 While it is as yet unclear, due to a technical issue,whether the legislative framework eventually enacted in Ireland actually solvedthe problem,72 the fact remains that in principle, this is another benefit ofadding such a framework to the underlying constitutional right.

A further reason for adding a legislative framework to the constitutional rightrelates to access to alternative and more specialised remedial procedures. It isessential that remedies in the field of special educational needs be speedy and

plan, it must be referred to the Special Education Appeals Board established under s.36 of the Act byeither or both of the bodies within two months of arising. The Appeals Board is then to determine thecase within two months.

66 This matter has been fully discussed by O’Mahony, ‘‘Education, Remedies and the Separation ofPowers’’ (2002) 24 D.U.L.J. 57.

67 On the relative looseness of the separation of powers under the British Constitution, see thefollowing quote from R. Stevens, The Independence of the Judiciary: The View from the Lord Chancellor’sOffice (1993) quoted in Laws, ‘‘Law and Democracy’’ [1995] P.L. 72 at p.90: ‘‘Nothing underlines theatheoretical nature of the British Constitution more than the casualness with which is approaches theseparation of powers’’. In spite of this, the courts still tend to regard an interference with matters ofpolicy as being a breach of the separation of powers; see Council of Civil Service Unions v Minister of Statefor the Civil Service [1985] A.C. 374.

68 [2001] 4 I.R. 259.69 See O’Mahony, ‘‘Education, Remedies and the Separation of Powers’’ (2002) 24 D.U.L.J. 57.70 In Sinnott v Minister for Education [2001] 2 I.R. 545, Hardiman J. suggested at 711–712 that no

difficulty would arise in respect of injunctive relief granted pursuant to a statutory duty. HardimanJ.’s judgment in Sinnott was basically a less developed version of the judgment which he gave shortlyafterwards in TD.

71 See Cronin v Minister for Education [2004] 3 I.R. 20572 See O’Mahony, Educational Rights in Irish Law, pp.256–259.


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accessible, since delays can cause irreparable damage to a child’s educationalprospects and cause the child to lose irretrievably a period of entitlementto free education. However, a plaintiff wishing to sue directly on foot ofthe constitutional right in Ireland must do so in the superior courts; this isinordinately expensive and time-consuming. An action for breach of statutoryduty, on the other hand, can be brought at a lower level; furthermore, alegislative framework can establish a statutory remedial procedure such as theSpecial Educational Needs and Disability Tribunal in England and Wales73

and the Special Education Appeals Board in Ireland.74 Both children withspecial educational needs and their parents already suffer from cumulativedisadvantage which has been identified as causing them to lack the time,resources or confidence to go to court as individuals.75 Consequently, it isessential that remedies be made as accessible as possible to them. Specialisttribunals have the distinct advantage of being more informal and user-friendlythan the courts, in addition to being far quicker and less expensive. Moreover,they are composed of specialist members who are in a better position than acourt of law to make informed judgments on the needs of individual children.

The overall argument in favour of adding a legislative framework to anunderlying constitutional right is that it provides the necessary level of detailto give practical effect to the right which is guaranteed in the bill of rights.The function of a constitutional right to education is not to deal with minutematters of detail, but to ensure the highest level of legal protection available.Legislation—both primary and secondary—will deal with the finer aspectsof educational provision, setting out exactly what is to be provided, who isto provide it, procedures for how provision should be made and remediesfor when it is not. The practical experience in Ireland would seem to haveconclusively demonstrated the need for legislation and the ineffectiveness of aconstitutional right alone. However, it could be asked: if it is legislation, ratherthan the constitutional right, that gives practical effect to the right to education,is there really any need for a constitutionalised right in the first place? Englandand Wales has operated a system for over 20 years that has relied solely onlegislation; the question that should now be considered is whether Englandand Wales has lost out on anything by not having an entrenched and justiciableconstitutional right to education.

Is a legislative framework sufficient on its own?

It has been shown above that the sole reliance on a constitutional rightto education in Ireland resulted in a completely inadequate response to

73 The Special Educational Needs and Disability Tribunal was established in England and Wales bys.177 of the Education Act 1993 and is currently governed by Pt IV of the Education Act 1996 (asamended by the Special Educational Needs and Disability Act 2001) and the Special Educational NeedsTribunal Regulations 2001 (SI 2001/600); see generally N. Harris, Special Educational Needs and Accessto Justice: The Role of the Special Educational Needs Tribunal (Bristol: Jordans, 1997).

74 The Special Education Appeals Board was established in Ireland by s.36 of the Education forPersons with Special Educational Needs Act 2004.

75 Lynch and Connolly, ‘‘Equality before the Law’’, p.588.



the rights of children with special educational needs, and that sustainedconstitutional litigation eventually brought about a legislative framework thatit is hoped will address many of the previous failures. However, it shouldalso be noted that some of the more admirable aspects of the legislationthat was eventually enacted—most particularly its demand-led approach toresources—were influenced by the presence of a constitutional right in the firstplace. It now falls to consider whether the system in England and Wales, whichis based solely on legislation, contains weaknesses which might be attributablein part to the absence of a constitutional right to education.

The first point to note in this regard is the approach in UK law to theprotection of human rights in general, and to the right to education inparticular, and to contrast this with the protection provided by the IrishConstitution. For this purpose, it is necessary to consider the incorporation ofthe ECHR into domestic law in the United Kingdom through the enactmentof the Human Rights Act 1998. The 1998 Act was undoubtedly a step in theright direction for the protection of fundamental human rights. However, it issubmitted that it did not go far enough in order to bring about an adequateprotection of human rights in general; furthermore, in the specific context ofthe right to education, the protection it offers is quite limited indeed.

Generally speaking, a fundamental difficulty with respect to the protectionof human rights in the United Kingdom is that the doctrine of parliamentarysovereignty leaves them perpetually at the mercy of Parliament. In this context,no less an authority than Lord Scarman has argued:

‘‘A legal system at the mercy of a legislature, which is itself, savein a minority situation, at the mercy of the executive, is no sureguarantee of human rights . . . Without a bill of rights protected fromrepeal, amendment, or suspension by the ordinary processes of a bareParliamentary majority controlled by the government of the day, humanrights will be at risk.’’76

While the 1998 Act may have introduced the language of human rights and thecase law of the Strasbourg court into domestic courts in the United Kingdom,the fact remains that it enjoys no level of legal entrenchment whatsoever.There is no requirement for legislation which proposes to amend or repealthe Act to be passed by a special majority, not to mention a referendum.The only additional legal protection enjoyed by the Act over and above otherstatutes is its protection from implied repeal arising from its classification asa ‘‘constitutional statute’’.77 The fact that parliamentary sovereignty allows

76 Sir Leslie Scarman, English Law—The New Dimension (London: Stevens & Sons, 1974), p.69. Apartfrom the dangers of parliamentary sovereignty, Scarman touches upon another issue here: the increasingdegree of control which the executive exercises over Parliament. Sir Thomas Bingham, ‘‘The EuropeanConvention on Human Rights: Time to Incorporate’’ (1993) 109 L.Q.R. 390 at p.391 has referred tothis as the ‘‘elective dictatorship of the majority [which] means that, by and large, the government ofthe day can get its way, even if its majority is small’’.

77 It was held in Thoburn v Sunderland City Council [2002] 4 All E.R. 156 that a ‘‘constitutionalstatute’’, i.e. a statute which ‘‘conditions the legal relationship between citizen and state in somegeneral, overarching manner, or . . . enlarges or diminishes the scope of what we would now regard


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Parliament to repeal any statute led Scarman to call for a new constitutionalsettlement78; at the very least, it would seem to justify arguing in favour of theadoption of a bill of rights which enjoys some degree of legal entrenchment.79

The matter is, however, not quite that simple, and account must be takenof political as well as legal entrenchment. Closer examination reveals thatacademic opinion is divided as to the real benefit of entrenching a bill ofrights. It has been suggested by Sir Thomas Bingham that there is no need forentrenchment of an Act incorporating the ECHR, since the political realityis that such an Act is extremely unlikely to be repealed.80 Zander approachesthe same point from the other side, suggesting that the level of entrenchmentis perhaps irrelevant as the government will always, if necessary, find a wayaround it.81 However, he also concedes Bingham’s point by stating that ‘‘[a]bill of rights clothed only in the special aura created by its title has a significantmeasure of entrenchment through the mere fact of its existence’’.82

The level of entrenchment which a bill of rights should enjoy is anotherquestion; this can range from an express derogation clause to a special majorityrequirement to the necessity for a referendum or even a combination of any orall of these.83 Certainly, Zander’s point that a requirement for a special majoritywill easily be met in an emergency is valid, while critics of entrenchmentmay argue that a requirement for a referendum goes too far and is undulyrestrictive in such an event. However, this difficulty can easily be overcomeby the inclusion of an emergency powers provision in the bill of rights orconstitutional document; such a provision can be formulated sufficiently tightlyto achieve, as far as possible, a balance between the protection of rights andthe ability of a government to respond to a crisis.84 Furthermore, it is common

as fundamental constitutional rights’’ cannot be impliedly repealed. The Human Rights Act 1998 isundoubtedly such a constitutional statute.

78 Scarman, English Law, p.69.79 It is important to note that as long as the doctrine of parliamentary sovereignty remains alive and

well, then in light of decisions such as Ellen Street Estates v Ministry of Health [1934] 1 K.B. 590 at597, it may be impossible to entrench a statute to any degree whatsoever, since Parliament is entitledsimply to ignore any provision in a statute which purports to prevent the statute being amended orrepealed in the normal way. On this point see further H.W.R. Wade, ‘‘The Basis of Legal Sovereignty’’[1955] C.L.J. 172, particularly at pp.174–176 and 190. If this view is correct, then any argument for anentrenched bill of rights becomes, by necessity, an argument for a new constitutional settlement.

80 Bingham, English Law—The New Dimension (1974) at p.396. Bingham states that the repeal of suchlaws as those extending the vote to the entire adult population or supporting the independence of thejudiciary would be unthinkable in the absence of something approaching a revolution and that a bill ofrights ‘‘would take its place at the head of this favoured list’’.

81 Zander, A Bill of Rights?, p.112.82 Zander, A Bill of Rights?, p.112.83 The various options are discussed by JUSTICE, A Bill of Rights for Britain? (JUSTICE, London,

2007), pp.13–15.84 Art.28.3.3◦ of the Irish Constitution provides that in time or war or armed rebellion, no law

expressed to be for the purpose of securing the public safety and the preservation of the State shall bedeclared invalid pursuant to any provision of the Constitution. While the power extends to allow theOireachtas to declare a state of emergency and enact such laws pursuant to a war taking place otherthan in the State (as happened in the Second World War), and to extend the period of an emergencyfor a period after the cessation of hostilities, the power does not extend any further than this andwould seem to strike a reasonable balance. Modern concerns regarding global terrorism could also beaccommodated in a similar provision.



for bills of rights to set out circumstances under which it is justified for agovernment to infringe any given right; the ECHR provides a good exampleof how a highly detailed system can be set down for testing whether any giveninterference is legitimate.85

Critics may argue that if Zander and Bingham are correct, and the levelof entrenchment enjoyed by a bill of rights is somewhat irrelevant, thenthere is certainly no need to go so far as to require a referendum authorisingamendments to the Bill. However, as noted above, rights can easily beeroded in a state where the bill of rights is not entrenched. Indeed, eventhe presence of an entrenched bill of rights does not entirely prevent stateviolations of rights. It is, however, the best form of protection available,and provided that sufficient flexibility is catered for in order to allow thegovernment to respond to threats to the common good, it is desirable thata bill of rights should be more deeply entrenched than a token requirementfor an express derogation clause or the slightly stricter concept of a specialmajority. It is the rights of the people that are being restricted, and once abill of rights has clearly specified the circumstances under which a governmentmay restrict the rights which it guarantees, then no further interferenceshould be permitted without the consent of the people as expressed in areferendum. This has the obvious advantage of a greater level of certainty anda more concrete and unassailable level of protection for rights in everydaycircumstances.

Apart from its lack of entrenchment, the 1998 Act suffers from further failings.The mechanisms which it employs for the incorporation of the Conventionhave been carefully formulated so as not to impinge upon parliamentarysovereignty in any way; consequently, the 1998 Act does not contain anymechanism for judicial review of legislation.86 The rather limited provisionswhich it does implement merely scratch the surface of what is required to detera resolute government from violating the rights of citizens through its acts oromissions. When it is recalled that the Act currently represents the high-watermark of human rights in domestic law in England and Wales, it is therefore

85 See, e.g. Sunday Times v UK (1980) 2 E.H.R.R. 245. M. Tushnet, ‘‘Living with a Bill of Rights’’in C. Gearty and A. Tomkins, eds, Understanding Human Rights (London: Mansell, 1996), has arguedat p.5 that a provision such as this may be undesirable in that constitutional approval may legitimiseintrusive government practices and even give the impression that they are actually desirable, whereasremaining silent on the issue makes the courts more likely to be adverse to such intrusions. However,this argument overlooks the fact that the absence of constitutional prescription of the circumstances inwhich these intrusions can be made leaves courts powerless ever to declare them invalid; defining themallows for intrusions which go too far to be struck down.

86 For an overview of the Human Rights Act 1998, see A. Lester and L. Clapinska, ‘‘Human Rightsand the British Constitution’’ in J. Jowell and D. Oliver, eds, The Changing Constitution, 5th edn(Oxford: OUP, 2004), pp.62–87. The procedure under the Human Rights Act whereby the courts candeclare legislation to be incompatible with the Convention, but it remains up to Parliament to remedythe defect, is well discussed by F. Klug, ‘‘A Bill of Rights: Do We Need One or Do We Already HaveOne?’’ [2007] P.L. 701. On the importance of judicial remedial powers to the practical implementationof human rights which are enumerated in written constitutions see F. Beytagh, ‘‘Individual Rights,Judicial Review, and Written Constitutions’’ in J. O’Reilly, ed., Human Rights and Constitutional Law(Dublin: Round Hall Press, 1992), pp.147–162.


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quite clear that the level of protection which is available to human rights ingeneral is somewhat less than desirable.

When the specific level of protection offered to the right to education isconsidered, the Act fares even worse. This is not due to any flaw in the Actitself, but to the extremely limited nature of the right to education under Art.2of Protocol No.1 to the ECHR. It is well established that Art.2 does notrequire the state to provide any education at all, confining itself to conferringa mere right of access to existing educational establishments. The case lawrelating to special educational needs has demonstrated how even this right ishighly limited by the level of discretion afforded to funding authorities as tothe allocation of resources.87 Since this weak provision, as implemented bythe somewhat limited Human Rights Act, is the closest thing in UK law toa constitutional right to education, it is clear that—in the legal sense at anyrate—the level of protection afforded to the right to education is less thancould be hoped for. Furthermore, it compares most unfavourably to Art.42 ofthe Irish Constitution, even notwithstanding its flaws.

Apart from the general approach to the protection of rights, a furtherargument can be drawn from the overall impression that one gains whencontrasting the body of constitutional case law relating to education in Irelandwith its legislative equivalent in England and Wales. The general approachto children in education law in England and Wales has been to avoid thecreation of individual rights.88 Instead, the Education Acts place local educationauthorities under a series of statutory duties and afford to them a large degree ofstatutory discretion as to how to discharge those duties. Undoubtedly, a largeamount of discretion is necessary for local education authorities to carry outtheir function. However, in the absence of a ‘‘right’’ to education (properlyso-called) in English law, the effect of this is as follows: as courts are invariablyreluctant to interfere with a public authority in its exercise of a discretionconferred by statute, cases begin from the standpoint—indeed, almost thepresumption—that the courts should not interfere with the course of actionadopted by the local education authority. It is up to the plaintiff in the case topersuade the court that there is a strong case for doing otherwise. This has theeffect of stacking the deck in favour of the local education authority in manycases and creating a major hurdle which many genuinely aggrieved plaintiffswill find it difficult to cross.89

The presence of an overarching constitutional right to education causes Irishcase law to have an entirely different emphasis. Instead of revolving around areluctance to interfere with the exercise of a statutory discretion, the case lawfocuses on the fact that the child has a constitutional right which the Statehas failed to vindicate.90 This is obviously a far preferable situation, and could

87 See O’Mahony, Educational Rights in Irish Law, pp.153–156.88 See, e.g. M. Freeman, ‘‘Children’s Rights in Education: A Test Case for Best Interests and

Autonomy’’ in R. Davie and D. Galloway, eds, Listening to Children in Education (London: David FultonPublishers, 1996), pp.29–48.

89 For a good example of this approach see R. v Cumbria CC Ex p. NB [1996] E.L.R. 65.90 See, e.g. Comerford v Minister for Education [1997] 2 I.L.R.M. 134.



make a particular difference in the field of special educational needs in Englandand Wales. The statutory procedures which are the subject of much litigationare so detailed that they become an issue in themselves, with the fundamentalissue of a breach of a child’s right to education becoming lost in the process.A constitutional right to education ensures that the real issues are at the heartof the litigation and do not become lost in a blur of procedure and discretions;the absence of such a right certainly has a detrimental impact on the focus ofthe litigation in England and Wales.

A bigger issue, however, is the focus of the legislation itself; indeed, it is fromthis that the focus of the litigation results. As mentioned above, the absenceof a rights-based approach to educational provision in England and Walesleads to a situation where the availability of resources is determined out of anoverall budget figure, out of which individual allocations of resources are to beallocated on a discretionary basis. Because the allocation of resources is supply-led and works from the top down, the overall budget is invariably inadequate,which has the knock-on effect that individual allocations of resources will, incertain cases at least, be similarly inadequate. This is exacerbated by the failureto separate the holder of the purse-strings from the exercise of the discretion,whereby LEAs are responsible for both the assessment of educational needs andthe allocation of resources to meet those needs. This inevitably leads to caseswhere individual provision is determined by reference to what can be providedwithin the budget rather than by reference to what is actually required to meetthe needs of the child.

In contrast, the Irish legislation provides for a system whereby specialeducational needs are determined in assessments arranged by schools or theNational Council for Special Education,91 and a duty is placed on the Minsterfor Education to allocate such moneys and other resources as are requiredfor the purposes of the preparation and implementation of education plansprepared on foot of such assessments.92 This suggests—and this would appearto be confirmed by discussion in the Dail (Irish Parliament)93—that the systemwill be demand-led, rather than supply-led, in the sense that the resourcessupplied to each school, and indeed overall, will be determined by the contentsof the education plans that are prepared, rather than by an overall budget figure.By way of contrast, Neville Harris has stated that, in England and Wales, ‘‘itmay be argued that, in general, special educational needs and provision are notexclusively, or even mostly, demand-led’’.94

This is a crucial difference between the jurisdictions in the context of thefunding arrangements for special educational needs, and it is highly significantto note that the rights-based and demand-led approach to resources whichhas been adopted in the Irish legislation would seem to have been a direct

91 See ss.3 and 4 of the Education for Persons with Special Educational Needs Act 2004.92 See s.13 of the Education for Persons with Special Educational Needs Act 2004.93 See 585 Dail Debates 823, May 13, 2003.94 N. Harris, ‘‘Special educational needs—the role of the courts’’ [2002] 14 C.F.L.Q. 137 at p.143.


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consequence of the pre-existence of a constitutional right to education.95

Under this approach, resource allocations are determined from the bottomup, with assessments of what provision the child requires being made by abody which is not involved in the allocation of resources, and the overallresources being provided by reference to the education plans which havebeen prepared pursuant to the assessments. Such is the expense involved insuch a system that it is difficult to imagine it having been designed in such away in the absence of a pre-existing entrenched and justiciable constitutionalright to education which is free from resource constraints. Thus the trueimpact of the presence of a constitutional right to education in Ireland andthe absence of such a right in England and Wales could be distilled downto the difference between a demand-led system which requires the consentof the people to any radical changes, and a supply-led system which can bealtered quite easily by, if not entirely at the whim of, the government ofthe day.

Conclusion

In considering the relative importance of a constitutional right to education anda legislative framework to the making of adequate provision for children withspecial educational needs, this paper has shown that there are many positivefeatures of a constitutional right to education that is entrenched, justiciableand free from resource constraints. This is what is provided by the currentIrish Constitution. While there are a number of arguments which can be madeagainst the existence of such a provision, it has been argued that these are eithermisconceived or ill-suited for application to the right to education. It has alsobeen shown that while constitutionalising the right to education in this mannerhas many advantages, it is in no way sufficient to rely on a constitutional rightalone. The practical implementation of the right requires that it be backedup by a detailed legislative framework, as shown by practical experience inIreland. This is not to say that the presence or absence of a constitutional righthas no practical impact; the legislation and case law in England and Waleshas shown that the absence of a constitutional right can result in eschewing arights-based approach in favour of a discretion-based and supply-led system,where insufficient resources are allocated out of inadequate budgets and courtslose sight of the rights of the child amid a blur of statutory procedures anddiscretions.

The analysis would seem to suggest that in providing for special educationalneeds, a legal system should ideally have an entrenched and justiciableconstitutional right to education which is free from resource constraints asa foundation, and a legislative framework as a superstructure; indeed this iswhat Ireland now has. While a number of individual flaws with various aspectsof the constitutional and legislative provisions persist, it is submitted that the

95 See the comments made by the Minister for Education and Science, Noel Dempsey, Dail SelectCommittee on Education and Science, January 7, 2004 regarding the legislation being designed toprovide a statutory base for the implementation of constitutional rights.



approach on a systemic level is the correct one. In light of the political realitiesof the constitutional system in the United Kingdom, this is an unrealistic courseof action to be recommended in England and Wales. Nevertheless, much couldstill be achieved by reforms which concentrated on the effect, rather than theform, of the law.

To this end, the right to education of children with special educationalneeds would be better protected in England and Wales if the legislationwas reformed in such a way as to be rights-based, for two reasons. First,there is no doubt that the language of rights has a major impact on theconsciousness of the electorate, and it could be argued that an increasedemphasis on the ‘‘right’’ to education in education legislation could bringabout a similarly significant measure of political entrenchment to that enjoyedby the Human Rights Act 1998. More significantly, legislation which isrights-based is more likely to operate so as to be demand-led, therebybeing far more likely to ensure that adequate resources are allocated tomeet individual needs. Ideally, in order to reinforce this, decisions regardingassessments of educational needs and the allocation of resources should bemade by separate bodies who are independent of each other. In this way theadvantages enjoyed in Ireland due to the nature of the constitutional right toeducation which exists there could be conferred to a certain extent in Englandand Wales without the necessity of a new constitutional settlement in theUnited Kingdom.


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Current Survey

(This survey covers the period August—November 2007)

Administration of Justice

Legal Services Act 2007

Complaints; Legal services; Legal Services Board; Regulatory bodies

Part 2 (ss.2–11) of the Legal Services Act 2007 establishes the Legal ServicesBoard, whose responsibility is to promote the regulatory objectives set out inPt 1 (s.1). Part 3 (ss.12–26) defines reserved legal activities and provides forthe regulation of those engaged in such activities. Part 4 (ss.27–70) deals withthe regulation of approved regulators. Part 5 (ss.71–111) deals with alternativebusiness structures. Part 6 (ss.112–161) deals with legal complaints. Parts 7, 8and 9 (ss.162–214) contain further and miscellaneous provisions about lawyers.

Precedent

Chancery Division; County courts; Jurisdiction; Precedent

The Court of Appeal reversed the decisions of two county court judges andoverruled an earlier decision of a deputy High Court judge. Both county courtjudges had held that, as the Chancery division of the High Court and thecounty court were courts of co-ordinate jurisdiction when hearing applicationsunder the relevant statutory procedure, they were not bound by the earlierdecision but as a matter of judicial comity should follow the earlier decisionunless satisfied that it was wrong. Held, that decisions of a higher court arebinding on judges sitting in a lower court; that the Chancery division of theHigh Court does not cease to be a higher court than the county court whenit exercises the same first instance jurisdiction as has been conferred on thecounty court; that there is no relevant difference between the decision of aHigh Court judge and the decision of a deputy High Court judge.Howard De Walden Estates Ltd v Aggio [2007] EWCA Civ 499 at [86];[2007] 3 W.L.R 542.

Judicial appointments

Appointments; House of Lords; Judges; Supreme Court


Current Survey 153

The Secretary of State for Justice will adopt ss.25–31 and Sch.8 of theConstitutional Reform Act 2005 (instituting the appointments process forjustices of the United Kingdom Supreme Court) on a voluntary basis fromnow on for those appointed to the Appellate Committee of the Houseof Lords (H.C.Deb., Vol.464, col.21WS, October 8, and (an amendingstatement) Vol.465, col.11WS, October 24, 2007). A discussion paper onjudicial appointments is published as Cm.7210.

Former judges

Barristers; Judges; Professional practice; Restrictive covenants;Retirement; Solicitors

The Secretary of State for Justice has decided after consultation that theconvention that former salaried judges cannot return to practice as barristers orsolicitors should remain. He is not persuaded that lifting the prohibition wouldincrease diversity of the judiciary.

Broadcasting

Freedom of information: status of BBC as public authority

Appeals; BBC; Freedom of information; Information Tribunal;Journalism; Judicial review; Public authorities; Requests for information;Statutory interpretation

In Pt VI of Sch.1 of the Freedom of Information Act 2000 the list of publicauthorities includes ‘‘The British Broadcasting Corporation, in respect ofinformation held for purposes other than those of journalism, art and literature’’.S sought disclosure under the Act of an independent report commissioned forthe BBC into allegations of bias in its coverage of events in the Middle East.The BBC refused disclosure and the Information Commissioner declined tohear S’s complaint on the grounds that the report fell within the journalismexception. S appealed to the Information Tribunal under s.57 of the Act. TheTribunal ruled that it had jurisdiction to hear the appeal and that the reportat the time of S’s request was held for purposes other than journalism, art orliterature. The BBC appealed to the High Court under s.59 and also claimedjudicial review of the tribunal’s decision. S claimed judicial review of thecommissioner’s decision. Held, (i) that, although the conclusion led to someinconvenience, the commissioner’s decision not to entertain the complaintdid not amount to a decision for the purposes of s.50 of the 2000 Act andtherefore the tribunal had no jurisdiction to entertain an appeal; (ii) thatjournalism extended to journalistic activity as well as journalistic product andthe commissioner’s view that the report was held for the purposes of journalismwas lawful, rational and properly open to him.British Broadcasting Corporation v Sugar [2007] EWHC 905 (Admin);[2007] 1 W.L.R. 2583, Davis J.


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Confidentiality

See also BROADCASTING

No right to privacy: Article 8 ECHR

Breach of confidence; Confidential information; Photographs; Right torespect for private and family life

M, aged 18 months and the son of a celebrated writer, was covertlyphotographed in a public street in Edinburgh without his or his parents’knowledge and consent. He suffered no distress. The photograph was publishedin a newspaper. Through his litigation friends M sought an injunction torestrain further publication of the photograph. Held, that, after the decisionof the European Court of Human Rights in Von Hannover v Germany (2004)E.H.R.R. 1, a distinction could be drawn between engaging in family andsporting activities, which were clearly intended to be enjoyed in the companyof family and friends without intrusion, and simple activities such as walkingdown the street or visiting shops, which presumptively should not attractany reasonable expectation of privacy; that the facts pleaded were insufficientto engage M’s Art.8 rights and the claim based on breach of confidence orinvasion of privacy would be struck out.Murray v Express Newspapers Plc [2007] EWHC 1908 (Ch); The Times,October 4, 2007, Patten J.

Public interest immunity

See Somerville v Scottish Ministers, noted under CONSTITUTION

Freedom of information

Freedom of information

The government response to the 4th report of the Constitutional AffairsCommittee, which concerned the Government’s proposals for reform offreedom of information, is Cm 7187.

Constitution

Devolution: Wales

Local government; National Assembly for Wales

Part 15 (s.235) and Sch.17 to the Local Government and Public Involvementin Health Act 2007 amend Sch.5 to the Government of Wales Act 2006 andconfer additional powers on the National Assembly of Wales in the area oflocal government.


Current Survey 155

Human rights claims and Scotland Act

Damages; Devolution issues; Human rights; Limitation periods; Prisongovernors; Scotland; Scottish Ministers; Segregation units; Ultra vires acts

A number of prisoners and former prisoners applied for judicial review ofdecisions by a prison governor and confirmed by a Scottish minister to‘‘segregate’’ them under r.80 of the Prisons and Young Offenders Institutions(Scotland) Rules 1994 seeking various remedies including damages as justsatisfaction for breaches of their rights under Art.8 ECHR. Section 7(5) ofthe Human Rights Act 1998 provides that a claim under that section againsta public authority must be brought ‘‘before the end of (a) the period of oneyear beginning with the date on which the act complained of took place,or (b) such longer period as the court or tribunal considers equitable havingregard to all the circumstances’’. The relevant provisions of the Scotland Act1998 were brought into force before those of the Human Rights Act. Section129(2) of the Scotland Act provides that certain sections, including ss.57(2) and100, shall in that event ‘‘have effect until the time when that Act [the HumanRights Act] is fully in force as it will have effect after that time’’. Section 57(2)provides inter alia that a member of the Scottish Executive has no power todo any act that is incompatible with any of the Convention rights. Section 100(1) provides the same test of standing (a victim) as s.7(1) of the Human RightsAct. Section 100(3) provides: ‘‘This Act does not enable a court or tribunalto award any damages in respect of an act which is incompatible with any ofthe Convention rights which it could not award if section 8(3) and (4) of theHuman Rights Act applied.’’ The Scottish Ministers produced a large numberof documents in the proceedings, but some entire documents and parts of otherdocuments were blacked out on the grounds that disclosure would be contraryto the public interest. Counsel for the petitioners were permitted on terms ofconfidentiality to consider the blacked out parts. The Lord Ordinary declinedto read the relevant documents and concluded that the petitioner had not madeout a case that the material was likely to give substantial support to any specificissue. Held, (i), Lord Scott of Foscote and Lord Mance dissenting, that a personwho claimed that an act or failure to act of a Scottish Minister was outsidedevolved competence because it was incompatible with a Convention rightshould be able to seek a remedy on the ground that that was ultra vires in termsof the Scotland Act, and, since s. 100 of the Scotland Act did not mentionthe time limit in s.7(5) of the Human Rights Act, that limit did not apply toproceedings under the Scotland Act; (ii) that a governor exercising a powerunder r.80 of the 1994 Rules was exercising a specific power conferred ongovernors and was not acting as a member of the Scottish Executive; (iii) thatthe question of when time began to run for the purposes of s.7(5) in the case ofa continuing breach of a Convention right was for present purposes academic;(iv) that it would not be appropriate in the present circumstances to reach adecision on whether proportionality was a relevant complaint of unlawfulnessat common law, since it was not clear what need there would be to determinethat issue; (v) that the Lord Ordinary could not properly have performed the


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task of determining the claim to public interest immunity without inspectingthe documents herself and they should be produced for inspection by her.Somerville v Scottish Ministers [2007] UKHL 44; [2007] 1 W.L.R. 2734.

Governance of Britain

Appointments; Constitutional reform; Demonstrations in vicinity ofParliament; Emergency powers; Judges; War

The Secretary of State for Justice announced the publication of threeconsultation documents related to the programme of constitutional renewal.The first deals with parliamentary approval for war powers and treaties(Cm.7239), the second with judicial appointments (Cm.7210) and the thirdwith protests in Parliament Square (Cm.7235). Space will be made availablein the forthcoming constitutional reform Bill for any agreed changes tothe governance of the National Audit Office emerging from a review.The Government will, starting in November 2007, publish annually itsnational security strategy. Parliament should in future have a clear role inthe appointment of members of the Intelligence and Security Committee.The Government will not proceed with proposals to limit media access to thecoroners’ courts (H.C., Deb., Vol.465, col.407, October 25, 2007).

The executive, judiciary and Parliament

Cabinet; Judiciary; Parliament; Relationships

The government response to the report of the House of Lords SelectCommittee on the Constitution on the relations between the executive,the judiciary and Parliament is Cm.7223.

Discrimination

Equality

Equality; Reports

The government’s response to the 6th report from the Communities and LocalGovernment Committee, entitled Equality, is Cm.7246.

Elections

Scottish elections 2007

Elections; Reports; Scotland


Current Survey 157

The Secretary of State for Scotland gave a statement on the report forthe Electoral Commission on the conduct of the May 2007 elections for theScottish Parliament and local authorities (H.C.Deb., Vol.465, col.165, October23, 2007).

Electoral Commission

Electoral Commission; Reports

The government’s response to the 11th report of the Committee on Standardsin Public Life, review of the Electoral Commission (Cm.7006) is Cm.7272.

Freedom of person

See PUBLIC ORDER

Freedom of property

Serious Crime Act 2007

Proceeds of crime; Revenue and customs; Search and seizure; Seriousoffences

Powers of search, seizure etc of property are given by the Serious CrimeAct 2007 in respect of the recovery of proceeds of crime (ss.76, 78 and 79),incidents involving serious violence (s.87) and the investigatory powers ofRevenue and Customs (s.88). See further under PUBLIC ORDER.

Freedom of speech

See PARLIAMENT

Government and Civil Service

Reports

Civil Service; Government adminstration; Reports

The government’s responses to the 6th and 7th reports of the Public Adminis-tration Committee, dealing respectively with the business appointments rulesand the Ministerial Code, are HC 1087 and 1088 (2006–2007). The Gov-ernment’s response to four of the Committee’s earlier reports on ethics andstandards, skills for Government, machinery of government changes and thepublication of political memoirs are respectively HC 88, 89, 90 and 91(2007–2008).


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Human Rights

See also PRISONS

Articles 5 and 6: Control orders

Judicial decision-making; Non-derogating control orders; Right toliberty and security; Terrorism

The Secretary of State made non-derogating control orders under s.1(2)(a)of the Prevention of Terrorism Act 2005 on certain individuals on thegrounds that he had reasonable grounds for suspecting them of involvementin terrorism-related activity and that the statutory conditions were satisfied.The effect of the orders was to confine the individuals in specified propertyfor 18 hours per day and to subject them to various other restrictions bothduring that period and during the remaining six hours. On a hearing unders.3(1) of the 2005 Act the judge held that the effect of these various restrictionsamounted to a deprivation of liberty under Art.5 ECHR and that the ordershould be quashed. Held, (i), Lord Hoffmann and Lord Carswell dissenting,that deprivation of liberty had an autonomous meaning wider than detentionin a particular place and it was for the courts to assess whether the cumulativeeffect of the restrictions on the life of the individual fell within that meaning;that the judge, starting from the detention under the 18-hour curfew andconsidering the totality of the restrictions had followed the correct approachand his decision was unassailable; (ii), Lord Hoffmann dissenting, that theSecretary of State had no power impose a control order incompatible withArt.5, the control orders were nullities, their defects could not be cured byjudicial amendment and they had to be quashed.Secretary of State for the Home Department v JJ [2007] UKHL 45;[2007] 3 W.L.R. 642.

Closed material; Non-derogating control orders; Right to fair trial;Terrorism

The Secretary of State sought permission from the court under s.3(1)(a) ofthe Prevention of Terrorism Act 2005 to make a non-derogating controlorder under s.2(1) against MB in order to prevent him travelling to Iraq.The proposed order did not seek to impose any curfew. The application forpermission was supported by an open and a closed statement. The justificationfor the order was contained in the closed statement. Following the submissionsby the Secretary of State and the view of the special advocate appointed torepresent MB, the judge accepted that it would be contrary to the publicinterest to disclose the closed material to MB but granted a declaration thatthe procedures in s.3 of the 2005 were incompatible with MB’s right toa fair trial under Art.6(1) ECHR. The Court of Appeal allowed an appealby the Secretary of State. In a separate case the Secretary of State made anon-derogating control order against AF, under which he was subjected to a


Current Survey 159

curfew lasting 10 hours per day and other restrictions. The judge found thatthe justification for the order lay in closed material not disclosed to AF. Heconcluded that the cumulative effect of the restrictions amounted to a breachof Art.5 ECHR, but declined to make a declaration of incompatibility. Heallowed AF to appeal directly to the House of Lords on a number of issues.Held, (i) that, having regard to the duration and nature of the restrictions, thejudge in the case of AF should not have concluded that there was a breach ofArt.5; (ii) that the proceedings did not involve the determination of a criminalcharge for the purposes of Art.6, but a person against whom an order wasproposed was entitled to procedural protection commensurate with the gravityof the potential consequences; that any restrictions in the interests of nationalsecurity of the individual’s right to be informed of the case against him and torespond to it had to be mitigated by procedural means such as the appointmentof special advocates; that the provisions in para 4 of the Schedule to the 2005Act were to be read down under s.3 of the Human Rights Act 1998 so as totake effect only where it was consistent with fairness; that both cases should beremitted to the High Court for consideration.Secretary of State for the Home Department v MB [2007] UKHL 46;[2007] 3 W.L.R. 681.

Conditions precedent; Curfew requirements; Non-derogating controlorders; Right to liberty and security; Secretaries of State; Terrorism

Section 8(2) of the Prevention of Terrorism Act 2005 provides that ‘‘theSecretary of State must consult the chief officer of the police force aboutwhether there is evidence available that could realistically be used for thepurposes of a prosecution of the individual for an offence relating to terrorism’’.The Secretary of State made a non-derogating control order against E unders.2(1) of the Act, imposing a 12-hour curfew and other restrictions. TheSecretary of State became aware of two judgments in the Belgian courtsimplicating E in terrorism-related offences, but did not disclose this to thechief officer of police when the chief officer informed the Secretary of Statewhen the order was due for renewal that there was insufficient evidence toprosecute E. Held, (i) that, having regard to the duration and conditions of thecurfew, there was no infringement of Art.5 ECHR, (ii) that compliance withs.8(2) was not a precondition to the making of an order under s.2; that theSecretary of State was under an implicit continuing duty to keep the prospectsof prosecution under review, but the failure to disclose the Belgian judgmentshad neither materially contributed to nor vitiated his decision to renew theorder.Secretary of State for the Home Department v E [2007] UKHL 47;[2007] 3 W.L.R. 720.

Article 5: Independence of Parole Board

See PRISONS


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Article 6: Evidence in cases of sexual offences

Disclosure; Previous convictions; Right to fair trial; Scotland; Sexualoffences

Section 275A of the Criminal Procedure (Scotland) Act 1995 (inserted by s.10of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002) hasthe effect, where an accused has succeeded in persuading the court to admitevidence of a kind that satisfies the conditions in s.275(1), of opening up thedisclosure of his record of previous convictions for sexual offences. Held, thats.275A, properly applied, does not violate the accused’s right to a fair trial, ands.10 of the 2002 Act is within the competence of the Scottish Parliament.DS v HM Advocate [2007] UKPC D1; 2007 S.L.T. 1026.

Article 6: Appearance of bias

See NATURAL JUSTICE

Article 8: Privacy

See CONFIDENTIALITY

Article 1 of First Protocol

See also JUDICIAL REVIEW

Meaning of possession

Doctors; Goodwill; Licences; Peaceful enjoyment of possessions;Suspension

A primary care NHS Trust suspended M, a general practitioner, from itsperformers list pursuant to reg.13 of the National Health Service (PerformersLists) Regulations 2004. The effect of the suspension was to prevent M fromusing his surgery premises for performing services to his NHS patients andfrom performing NHS services anywhere else, but he remained free to provideservices to private patients at those premises or elsewhere. Collins J. held thatthe suspension was unlawful, and the trusts did not appeal on that decision, butdid appeal against his ruling that the suspension amounted to an interferencewith M’s possessions contrary to Art.1 of the First Protocol to the ECHR.Held, allowing the appeal, that, since M was prevented by regulation fromselling the goodwill to his practice, his goodwill had no economic value, andlikewise his personal permission in the form of inclusion on a personal list hadno economic value, and so his personal right to practise in the NHS was not apossession within the meaning of the article.R. (on the application of Malik) v Waltham Forest NHS Primary CareTrust [2007] EWCA Civ 265; [2007] 1 W.L.R. 2092.


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Squatters’ rights

Adverse possession; Agricultural land; Legitimate aim; Limitationperiods; Peaceful enjoyment of possessions; Proportionality

P, a company, owned land over which G had grazing rights until December1983. G was instructed to vacate the land but did not do so. From 1984until 1999 G continued to occupy the land without permission. In 1997 Gregistered cautions at the Land Registry against P’s title on the grounds thathe had obtained title by adverse possession. P sought the cancellation of thecautions and also sought possession of the land. G relied on the LimitationAct 1980 which barred a claim for recovery after 12 years and on the LandRegistration Act 1925, which provided that after the end of the limitationperiod, the registered owner held the land on trust for the squatter. The Houseof Lords upheld the decision of the High Court that P had lost its title to theland. Held, by 10 votes to 7, that Art.1 of Protocol 1 was applicable; that Pwas affected not by a deprivation of possession but by a control of land use;that the limitation period pursued a legitimate aim in the general interest andsimilar provisions were found in a large number of European countries; thatthe limitation period had been in force for many years, P was well aware ofthe provisions and very little action on its part was required in order to stoptime running; that a requirement of compensation for loss of the land wouldsit uneasily with the purpose of a limitation period; that the limitation perioddid not upset the fair balance required by Art.1.J.A. Pye (Oxford) Ltd v United Kingdom (Application No.44302/02) TheTimes, October 1, 2007, ECtHR.

Joint Committee reports

Elderly persons; Health care; Human rights; Reports; Terrorism;Trafficking in human beings

The following reports of the Joint Committee on Human Rights have beenpublished: 21st (HL179/HC1056 (2006–2007)) Human Trafficking: Update;1st (HL5/HC72 (2007–2008)) Government Response to the Committee’s 18threport of Session 2006-07: The Human Rights of Older People in Healthcare. TheGovernment reply to the Committee’s 19th report (Counter-terrorism policy andhuman rights) is Cm.7215.

Immigration and Race Relations

See also JUDICIAL REVIEW

UK Borders Act 2007

Biometrics; Border controls; Detention; Powers of seizure


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Sections 1–4 of the UK Borders Act 2007 give powers to designatedimmigration officers to detain individuals pending the arrival of the police.Sections 5–15 confer powers to make regulations requiring those subject toimmigration control to apply for a biometric immigration document recordingexternal physical characteristics and imposing penalties for non-compliance.Sections 16–21 contain miscellaneous provisions relating to the treatment ofclaimants. Sections 22–31 deal with enforcement provisions including theseizure of cash and property and arrest. Sections 32–39 specify the conditionsand procedure for the deportation of prisoners who are foreign nationals.Sections 40–47 provide for the sharing of information between agencies andconfer powers on an immigration officer, a police constable or a policecivilian to search premises for certain purposes. Sections 48–56 create a singleindependent inspectorate for the Border and Immigration Agency.

Availability of safe haven

Asylum and Immigration Tribunal; Asylum seekers; Internal relocation;Judicial decision-making; Precedents; Sudan

Three Sudanese refugees from Darfur had been refused asylum on the groundsthat they could be relocated internally to Khartoum. The decision was upheldby the Asylum and Immigration Tribunal, whose decision was reversed by theCourt of Appeal. Held, (i) that the finding of the tribunal that the applicantswould not be at risk of persecution in Khartoum had not been challenged; (ii)that the Court of Appeal had been wrong to reject the tribunal’s finding that itwould not be unreasonable or unduly harsh to return them to Khartoum, sinceit was clear (a) that the tribunal had not on a proper reading of their findingsdecided that relocation could not be unduly harsh unless the conditions wereliable to infringe Art 3 ECHR and (b) the tribunal had not excluded theconditions the applicants enjoyed in Darfur in considering whether it wouldbe unduly harsh to relocate them.

AH (Sudan) v Secretary of State for the Home Department [2007]UKHL 49: The Times, November 15, 2007

Challenging deportation decisions

Asylum seekers; Delay; Deportation orders; Judicial review; Removal

The Court of Appeal has set out the important principles that must be followedin making applications for judicial review of deportation decisions and inseeking to appeal to the Court of Appeal. Failure to adhere to the principlescould lead to professional sanctions.R. (on the application of Madan) v Secretary of State for the HomeDepartment [2007] EWCA Civ 770; The Times, August 27, 2007.


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Judicial Review

Scope of rule against fettering

Licences; Peaceful enjoyment of possessions; Personal licences; SecurityIndustry Authority Rules; Security industry; Ultra vires

Section 3 of the Private Security Industry Act 2001 makes it an offence for aperson to engage in any licensable conduct, including door supervision, exceptunder and in accordance with a licence under the Act. The Security IndustryAuthority has a duty under s.7 before issuing any licences to prepare and publisha document setting out the criteria which it proposes to apply in exercisingits powers under the Act. The published criteria included an automatic barof five or two years on applicants who had committed a relevant serious orsignificant offence. Three claimants, who had been door supervisors for manyyears under the self-regulatory scheme existing prior to the 2001 Act, wererefused licences in accordance with these criteria and sought judicial reviewof the authority’s refusal to change the criteria. Held, (i) that the eliminationof criminality among door supervisors was one of the aims of the 2001 Actand the automatic bar was wholly within the scope and purpose of s.7; (ii)that, where Parliament had conferred a broad discretion on a public authorityto take decisions conferring benefits or imposing burdens without expresslyauthorising the authority to make rules or establish a policy, the authorityshould not fetter its discretion, but where, as under the 2001 Act, Parliamenthad expressly conferred a rule-making power, the only question was whetherthe rules were intra vires the statutory power, rational and proportionate, andthe rules in question satisfied those tests; (iii) that it was doubtful on presentauthority if the permissions enjoyed by the claimants prior to the Act werepossessions for the purposes of Art. 1 of the First Protocol to the ECHR, but,assuming that they were and that the published criteria interfered with them,the automatic bar was proportionate to the legitimate aim and was justifiedunder Art.1.R. (on the application of Nicholds) v Security Industry Authority[2007] EWHC 1792 (Admin); [2007] 1 W.L.R. 2067, Kenneth Parker Q.C.sitting as a deputy High Court judge.

Alternative procedures

Discretionary powers; Financial Ombudsman Service; Financial advisers;Judicial review; Jurisdiction; Misselling; Statutory powers

In two cases claimants complained to the Financial Ombudsman Serviceabout advice given by a financial adviser. The complaints arose under theombudsman’s compulsory jurisdiction (s.227 of the Financial Services andMarkets Act 2000). In the first case the ombudsman directed the firm to carryout a loss assessment and to make redress according to regulatory guidance.In the second case the ombudsman gave a ruling that would involve the


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firm in providing financial compensation. In both cases the firm refused topay sums exceeding £100,000. Section 229(2) of the 2000 Act provides thata determination ‘‘may include (a) an award against the respondent of suchamount as the ombudsman considers fair compensation for loss or damage. . . (‘a money award’) (b) a direction that the respondent takes such steps inrelation to the complainant as the ombudsman considers just and appropriate.’’Section 229 (5) provides: ‘‘A money award may not exceed the monetarylimit.’’ The relevant rules provided that the monetary limit was £100,000.Held, (i) that the firms were entitled to raise in proceedings for the enforcementof the award the question whether the ombudsman had jurisdiction to makethe awards he purported to make and were not confined to judicial review;that there was nothing in the 2000 Act ousting the court’s jurisdiction toconsider any invalidity in the award as a defence to the proceedings; (ii) thatthe ombudsman had no power under s.229 (2) (a) or (b) to make an award thatwould require a firm to make payment in excess of £100,000.Bunney v Burns Anderson Plc [2007] EWHC 1240 (Ch); [2007] 4 All E.R.246, Lewison J.

Review as abuse of process

Asylum and Immigration Tribunal; Asylum seekers; Discrimination;Judicial review; Statutory reviews

Although the structure of the Asylum and Immigration Tribunal (AIT) hassubsequently been amended by legislation, the decision in R. (on the applicationof G) v Immigration and Appeal Tribunal [2005] 1 W.L.R. 1445 is still bindingon the Court of Appeal, nor has it been undermined by subsequent decisionsof the House of Lords. It is therefore an abuse of process to challenge byway of judicial review decisions of the AIT made under the statutory reviewprocedure in the Nagtionality, Immigration and Asylum Act 2002.R. (on the application of F) (Mongolia) v Asylum and ImmigrationTribunal [2007] EWCA Civ 769; [2007] 1 W.L.R. 2523.

Local Government

Sustainable Communities Act 2007

Local authorities’ powers and duties; Sustainable development

Section 2 of the Sustainable Communities Act 2007 requires the Secretaryof State to invite local authorities to make proposals which they considerwould contribute to promoting the sustainability of local communities. TheSecretary of State must decide, after considering a short-list drawn up by theselector appointed to consider the proposals, which of the proposals should beimplemented.


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Greater London Authority Act 2007

Emergency planning; Greater London; Housing policy; Localauthorities’ powers and duties; Planning control; Transport

Part 1 (ss.1–16) of the Greater London Authority Act 2007 amends the GreaterLondon Authority Act 1999 in respect of its general functions. Parts 2–5(ss.17–27) contain provisions relating to transport, the London DevelopmentAgency, health and the London Fire and Emergency Planning Authority. Part 6(s.28) obliges the Mayor to prepare and publish a housing strategy for London.Part 7 (ss.29–36) deals with planning functions. The Mayor is given power todetermine planning applications which are of potential strategic importance.Parts 8–11 (ss.37–59) deal with environmental functions, culture, media andsport and miscellaneous functions.

Local Government and Public Involvement in Health Act 2007

Health care; Local authorities’ powers and duties; Patients’ rights

Part 1 (ss.1–30) of the Act deals with structural and boundary change inEngland. These will inter alia enable proposals to be made for local authoritiesin two-tier areas to move to a unified structure. Part 2 (ss.31–61) deals withelectoral arrangements. Sections 31–54 enable district councils in England toseek to change the electoral arrangement, e.g. by moving to an arrangementat which the entire council is elected simultaneously. Councils may alsorequest single-member electoral areas. Part 3 (ss.62–74) deals with executivearrangements for councils in England and amends the Local Government Act2000 in relation to such matters as referendums on new forms of executivearrangements. Part 4 (ss.75–102) deals with parishes. Part 5 (ss.103–128) dealswith co-operation of English authorities with local partners. Part 6, 7 and8 (ss.129–167) deal with bye-laws, best value and inspection and audit. Part9 (ss.168–182) deals with the Commissioner for Local Administration inEngland. Part 10 (ss.183–204) deals with ethical standards. Parts 11, 12 and13 (ss.205–220) deal with joint waste authorities, entities controlled by localauthorities and the Valuation Tribunal for England. Part 14 (ss.221–234) dealswith the involvement of patients and the public in health and social care.For Pt 15, see CONSTITUTION. Parts 16 and 17 (ss.236–246) containmiscellaneous and final provisions.

Standards

Annual reports; Standards Board for England

The report of the Standards Board for England for 2006–2007 is HC1009(2006–2007)


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Natural Justice

See also PRISONS

Appearance of bias: Article 6 ECHR

Bias; Crown Prosecution Service; Juries; Jurors; Police officers; Right tofair trial

The jury at the trial of A on a charge of attempted murder were to adjournover a weekend. The foreman informed the judge that he was a serving policeofficer who was due to be on duty and might encounter some of the policeofficers involved in the case. The judge told him not to report for duty. Ghad been searched by B, a police officer, and was later convicted of assaultoccasioning actual bodily harm and having a bladed or pointed article. Therewas a dispute on the evidence between G and B as to the manner of thesearch and what was said. G’s solicitor later discovered that M, a member ofthe jury, was a police officer who had at one time served in the same policestation as B, although they did not know each other. W was charged withrape. A member of the jury, MJ, wrote to the court before the trial to say thathe had been a member of the Crown Prosecution Service since 1986. Thejudge ruled that, in the light of current legislation, he could see no objectionto MJ serving on the jury. Held, (i) that the relevant principle was to discernwhether a fair-minded and informed observer would conclude that there wasa real possibility of bias; (ii) that in the case of A there was no contest betweenhis evidence and that of the police and there was no appearance of bias in thepresence of the officer on the jury; (ii), Lord Rodger of Earlsferry and LordCarswell dissenting, that the convictions of G and W should be quashed; in thecase of G there was a close local connection and disputed evidence between Gand the police; in the case of W, the judge had given no serious considerationto the issue of bias and there was a clear appearance of bias if an employedCrown prosecutor were to sit as a juror in a prosecution brought by his ownauthority.R v Abdroikov [2007] UKHL 37; [2007] 1 W.L.R. 2679.

Right to be heard

Care workers; Lists; Right to fair trial; Right to respect for private andfamily life; Vulnerable adults

When a care worker is provisionally included in the protection of vulnerableadults list under s.82(4)(b) of the Care Standards Act 2000, the result unders.89 is loss of present employment and an embargo on obtaining any otheremployment in a care position. Held, that s.82(4)(b) is to be interpreted unders.3 of the Human Rights Act 1998 as requiring the Secretary of State to giveworkers the right to make representations before he made a decision to list


Current Survey 167

unless he reasonably believed that the resultant delay would place a vulnerableadult at risk of harm.R. (on the application of Wright) v Secretary of State for Health[2007] EWCA Civ 999; The Times, November 16, 2007.

Ombudsmen

See JUDICIAL REVIEW

Parliament

Parliamentary privilege

Acquisition of land; Admissibility; Constitutional rights; Judicial review;Ministers; Right of access to court; Saint Vincent and the Grenadines;Statements

T brought an action against the government claiming that the purportedacquisition of his land was unconstitutional and unlawful. He wished to relyon a statement by the Prime Minister during a debate explaining why thegovernment had taken the decision compulsorily to acquire T’s land. On anapplication to strike out those parts of the claim on the grounds of parliamentaryprivilege, held, (i) that, having regard to Art.9 of the Bill of Rights 1889 andthe decision in Prebble v Television New Zealand Ltd [1995] 1 A.C. 321, Tshould be able to rely on the statement as a record of what was said as to thereasons for the acquisition, although it would not be permissible to impugnthe statement itself, (ii) that T’s right of access to the courts would be undulyundermined if he could not rely on the statement and s. 16 of the House ofAssembly (Privileges, Immunities and Powers) Act had to be adapted to enableevidence of such statement to be admissible.Toussaint v Attorney General of St Vincent and the Grenadines [2007]UKPC 48; [2007] 1 W.L.R. 2825.

Entitlement to salary

Constitutional rights; Members of Parliament; Oaths; Remuneration;Trinidad and Tobago

At a general election in Trinidad and Tobago in 2001 18 PNM and 18UNC candidates were elected to the House of Representatives. The Presidentappointed the leader of the PNM party as Prime Minister and he then appointedthe other 17 PNM members as ministers and they received ministerial salaries.In April 2002 and again in August 2002 Parliament met in order to elect aSpeaker but failed to do so because of the equality of votes. The Presidentdissolved Parliament and at the subsequent election the PNM party won a clearmajority. The authorities of the House decided that, as the elected members


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had been unable to take the oath of allegiance because of the failure to electa Speaker, they were ineligible to receive the parliamentary salaries for therelevant period. Rule 91 of the Standing Orders of the House provides: ‘‘Inany matter not herein provided for, resort shall be had to the usage and practiceof the Commons House of Parliament of Great Britain and Northern Ireland,which shall be followed as far as the same may be applicable to this House. . . ’’. The UNC members brought proceedings claiming that they wereentitled to remuneration. Held, that, although a member could not take part inproceedings until he had taken the oath of allegiance and Erskine May statesthat salary becomes payable when a member of the House of Commons hastaken the oath, nevertheless it is difficult to imagine a modern, democraticstate in which a member of the lower House at least is not paid and there isno British precedent for the current situation; that it must be inferred that theframers of the Constitution intended the parliamentary system to be fair andeven-handed; that the implied constitutional right to receive a salary when amember was willing and able to take the oath must prevail over a contraryprocedural rule.Sharma v Attorney General of Trinidad and Tobago [2007] UKPC 41;[2007] 1 W.L.R. 2223.

Fair and accurate report of parliamentary proceedings

Defamatory meaning; Libel; Parliamentary proceedings; Qualifiedprivilege

C brought proceedings for damages for libel in respect of a newspaper article,which also appeared on its website. The newspaper relied on the defenceprovided by s.15 and para.1 of Sch.1 to the Defamation Act 1996 and arguedthat the article was a fair and accurate report of parliamentary proceedings,namely a speech by R, a member of Parliament, in the course of a debate.Held, that it was necessary first to determine what R had said and then decidewhether the extraneous material added by the newspaper rendered the article asa whole lacking in qualities of fairness and accuracy, having regard to the extentof the extraneous non-privileged material, the severability of that material andthe degree of connection between the privileged material and the extraneousmaterial; that, applying those tests, relevant parties in the article were protectedby privilege.Curistan v Times Newspapers Ltd [2007] EWHC 926 (QB); [2007] 4 AllE.R. 486, Gray J.

Modernisation of House of Commons

Constitutional reform; House of Commons

The House of Commons welcomed the First Report of the Select Committeeon the Modernisation of the House of Commons (HC 337 (2006–2007)),which concerned the role of the backbench member, and approved the


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proposals for changes in the procedures and practices of the House set out inthe Government’s response to the report (Cm.7231), including the proposalsfor topical questions (H.C.Deb., Vol.465, col.441, October 25, 2007).

Standards and Privileges

Committee on Standards and Privileges; Reports

The 8th report of the Standards and Privileges Committee (HC1071(2006–2007)) concerns the conduct of Mr Martin Salter and Mr Rob Wilson.The 1st report of the Committee (HC94 (2007–2008)) concerns the conductof Mr Elfyn Llwyd, Mr Adam Price and Mr Hywel Williams concerningnewspaper advertisements in the week preceding the Welsh Assembly elections.The annual report of the Parliamentary Commissioner for Standards for 2006is HC1012 (2006–2007).

Prisons

See also NATURAL JUSTICE

Independence of Parole Board: Article 5 ECHR

Bias; Fairness; Parole Board; Right to independent and impartial tribunal

A number of prisoners claimed judicial review of the use of the Parole Boardto undertake review of their sentences. The Board was a non-departmentalpublic body operating under the sponsorship of the relevant department ofstate. Sponsorship had been transferred from the Home Office to the Ministryof Justice. Held, that the relationship of sponsorship created what objectivelyappeared to be lack of independence and to cause the sponsoring departmentsometimes to treat the board as part of its establishment; that there weredocumented instances of the use of the powers of the department inconsistentwith the need to maintain objective independence; that the claimants wereentitled to a declaration that under the common law and Art 5(4) ECHR theboard lacked objective independence of the executive.R. (on the application of Brooke) v Parole Board [2007] EWHC 2036(Admin); The Times, October 18, 2007.

Detention after expiry of tariff

Imprisonment for public protection; Prisoners; Sentencing tariff

Two prisoners, sentenced to imprisonment for public protection, were detainedafter the expiry of the tariff period. In one case he claimed that he had not beenafforded an opportunity to undertake offending behaviour work or courses inprison and was unable to demonstrate to the Parole Board that it was safe to


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released him on licence. Held, that continued detention without current andperiodic means of assessing a prisoner’s risk, was arbitrary and unreasonableand therefore unlawful.R. (on the application of Wells (Nicholas)) v Parole Board [2007]EWCA Civ 1835 (Admin); The Times, October 11, 2007.

Telephone calls: Article 8 ECHR

Justification; Policies; Prisoners’ rights; Right to respect forcorrespondence; Right to respect for private and family life; Scotland;Telephone calls

A prisoner governor attached a pre-recorded message to all outgoing telephonecalls indicating to recipients that the call was coming from a Scottish prison.The governor acted in accordance with a direction under the prison rules,themselves made under the authority of s.39 of the Prisons (Scotland) Act1989. The Lord Ordinary granted declarator that the practice was contraryto Art.8 ECHR. Held, that the Lord Ordinary had failed to take adequatelyinto account the Art.8 rights of third parties, namely the recipients of thecalls, particularly where the calls were monitored and recorded; that it couldnot be concluded at this stage that the inclusion of the message was not inaccordance with the law; that the case should be remitted to the Lord Ordinaryto determine further procedure.Potter v the Scottish Ministers [2007] CSIH 67; 2007 S.L.T. 1019.

Investigation of death in custody

Custody; Investigations; Positive obligations; Prisoners; Right to life;Suicide

JL attempted to commit suicide while in custody at a young offendersinstitution. The judge held that he was obliged to hold an enhancedinvestigation. Held, dismissing an appeal, that it was for the state to investigatethe facts and explain how the death or near death occurred and not for thevictim or the family to establish some arguable case before that investigationrook place; that an investigation in the present case would have had to formthe view that potentially the state may have failed in its obligations to hold afull inquiry.R. (on the application of JL) (A Youth) v Secretary of State for theHome Department [2007] EWCA Civ 767; The Times, October 2, 2007.

Contracted out prisons

Contracting out; Prison discipline

The Prison (Amendment) Rules 2007 (SI 2954/2007) amend the PrisonRules 1999 to enable to director of a contracted-out prison to conduct certain


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disciplinary hearings relating to prisoners and to take specified measures relatingto segregation and restraint.

Reports

Annual reports; Parole Board

The annual report of the Parole Board for England and Wales for 2006–2007is HC1022 (2006–2007). The annual report for 2006 of the Parole Board forScotland is SE 2007/155.

Public Order

See also HUMAN RIGHTS

Serious Crime Act 2007

Serious crime prevention orders

Part 1 (ss.1–43) of the Serious Crime Act 2007 creates the concept of SeriousCrime Prevention Orders, a civil order made on application to the HighCourt, or to the Crown Court on conviction, to protect the public bypreventing, restricting or disrupting involvement in serious crime. See furtherunder FREEDOM OF PROPERTY.

Power to withhold information

Exclusion from court; Judicial decision-making; Statutory interpretation;Terrorist investigations; Warrants of further detention

W was arrested under s.41 of the Terrorism Act 2000 on suspicion ofinvolvement in a bank robbery in Northern Ireland. He was interviewed in thepresence of his solicitor. On two further applications by the police they weregiven extensions of time to complete the process of interviewing. The policethen sought a further extension. At a hearing before a judge in the presenceof a police superintendent, the police legal representatives, W and his solicitor,the superintendent gave evidence on oath in support of the application thatthey wished to interview W on five further topics. The judge asked what theywere and agreed to a request from the police to exclude W and his solicitorfrom the hearing while the matter was explored. When they returned, thejudge granted an extension of time but did not inform W or his solicitor ofwhat had transpired. W applied for judicial review. Held, that there was norule of law that required the police to reveal to a suspect the questions thatthey wished to put to him or the topics that they wished to cover, and thejudge had acted lawfully.Ward v Police Service of Northern Ireland [2007] UKHL 50; The Times,November 22, 2007.


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Outraging public decency

Common law; Obscenity; Outraging public decency; Public places;Sexual offences

H was convicted of five offences of outraging public decency contrary tocommon law. He had surreptitiously placed a video camera in his rucksackwhen in supermarkets in order to film up the skirts of certain women. Held,(i) that the jury had been entitled to find that the act was of such a lewd,obscene or disgusting character that it outraged public decency even if no onesaw it being carried out; (ii) that, although no one had seen the filming, therewas evidence that there were others present and that was sufficient to satisfythe requirement that the act was capable of being seen by two or more personspresent.R v Hamilton [2007] EWCA Crim 2062; The Times, October 16, 2007.

Defence to false imprisonment

Breach of the peace; Demonstrations; False imprisonment; Police powersand duties; Right to liberty and security

A came to London to take part in a demonstration. S came on his employer’sbusiness. They both behaved lawfully throughout, but were held for severalhours behind a police cordon at Oxford Circus and were refused permissionto leave. Held, that in order to prevent an imminent breach of the peace thepolice had no alternative but to ask all those in Oxford Circus to remain insidethe cordon; that was a test of necessity which could be justified only in trulyextreme and exceptional circumstances, but the police on the facts had a gooddefence to claims in false imprisonment.Austin v Commissioner of Police of the Metropolis [2007] EWCA Civ989; The Times, October 29, 2007.

Tort

See also PUBLIC ORDER

Misfeasance in a public office

Amendments; Fresh evidence; Limitations; Lloyd’s; Misfeasance inpublic office

Lloyd’s names sought to add in long-standing litigation against Lloyd’s a claimof misfeasance in a public office. Held, that the Society of Lloyd’s had whollycommercial objectives and was not a public officer for the purposes of the tort.Society of Lloyd’s v Henderson [2007] EWCA Civ 930; The Times, October9, 2007.



International Survey

Editor: Richard Cornes, Essex University,United Kingdom

Constitutional law; Democracy; Legal publishing; Terrorism

Correspondents: Australia and South East Asia: Prof. Cheryl Saunders (Cen-tre for Comparative Constitutional Studies, The University of Melbourne,Australia); Canada: Prof. Jean-Francois Gaudreault-Desbiens (Universite deMontreal, Canada); France: Roger Errera (Conseiller d’Etat honoraire) and DavidMarrani (Essex University); Germany: Prof. Dr Beate Rudolf (Freie Univer-sitat, Berlin); India: Dr Shubhankar Dam (Singapore Management University,Singapore); Israel: Dr Suzie Navot (Colman Law School, Israel); New Zealandand South Pacific: The Public Law Group (Faculty of Law, University of Auck-land); South Africa: Profs Christina Murray and Richard Calland (DemocraticGovernance and Rights Unit, University of Cape Town, South Africa); Spain:Prof. Marian Ahumada Ruiz (Universidad Autonoma de Madrid, Spain);United States: Tina Drake Zimmerman (Supreme Court Institute Fellow,Georgetown University Law Center, USA); Correspondent at large: CharlesBanner (Landmark Chambers, London, United Kingdom).1

Editor’s introduction

In 1956 Public Law was launched:

‘‘. . . devoted to publishing scholarly articles, reviews and surveysthat analyse and comment upon leading issues of constitutional andadministrative law in the United Kingdom and abroad (especially inEurope, USA and the Commonwealth).’’

For a period in its earlier days the journal covered decisions of the USSupreme Court. That section was followed by Roger Errera’s reports on thework of the Conseil d’Etat. The International Survey continues the journal’scommitment to an outward looking approach to what matters in its field,providing a forum for developing trans-jurisdictional conversations aboutmatters of common concern across different states.

1 Where appropriate specific authors of the contributions from Australia and South East Asia, France,New Zealand and South Pacific, and South Africa, are indicated below.


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The Survey will draw on the insights of correspondents from around theglobe (and M. Errera’s continuing assistance as one of those correspondentsis welcomed). Any such report of this length must be selective. Each quartercorrespondents will report briefly to the section editor the matters they thinkworth commenting on from their jurisdiction or jurisdictions. Working fromthose preliminary reports the editor will then commission reports, identifyingand pursuing common themes where they arise. Three themes link the reportsthis quarter. First, balancing democratic values with the task of responding toterrorist threats; of comparative interest is how common challenges are leadingto different policy responses. Compare, for example, the approach to managingsuspected terrorists in Australia, Canada, New Zealand, and the United Statesreported on below.

The second theme concerns cases and legislation which relate to theregulation of the democratic process—both securing the probity of those weelect and seeking to maintain the primacy of the electorate’s will (expressed inopen and regular elections) as the primary rationale for legislative and executiveaction. One recurrent concern for democracies addressed recently in Germany(by the Constitutional Court), India (by the legislature and Supreme Court),Spain (by the legislature), and the United States (by the Supreme Court) ishow properly to regulate the funding of parties, legislators, and the electoralprocess.

The final theme relates to the composition and operation of supreme andconstitutional courts—the ‘‘referees of democracy’’. The reports under thistheme touch on how these courts can find themselves ‘‘in play’’, with actorsfrom the legislative and executive branches seeking to influence the outcomesof cases (and the development of whole areas of law) not only by representationsmade in individual cases, but also by addressing the composition and operationof such courts. As reports from Israel, South Africa, and Spain this quarterindicate, the US Supreme Court is not alone in having its membership andoperation scrutinised for the purposes of seeking to predict, or alter, its futurejurisprudential direction.

Comments are welcomed to [email protected].

Australia—High Court of Australia on constitutionality of interimcontrol orders—Thomas v Mowbray [2007] H.C.A 33

Australia; Constitutionality; Interim orders; Judicial decision-making;Right to liberty and security; Separation of powers; State security

In Thomas v Mowbray the High Court of Australia upheld the interim controlorder regime which allows the judiciary to approve, without prior notice tothe person concerned, and without an arrest, trial or conviction, temporaryorders to control a person’s movement and communication (Criminal CodeAct 1995 (Cth) Div. 104). In the absence of constitutional or legislativeprotection of rights, the only limits on the authority of the Australian Federal(Commonwealth) Parliament to prescribe such a regime lie in the constitutional



separation of powers and in the federal division of power. Both were arguedin this case, without success.

The High Court accepted that the interim control orders were, in largepart, an exercise of the defence power (s.51(vi) of the Commonwealth ofAustralia Constitution Act 1900, the Constitution), supported by the powerto make laws with respect to external affairs (s.51(xxix) of the Constitution),if necessary. In doing so, a majority adopted an interpretation of the defencepower that embraced threats from within as well as outside Australia, aimedagainst people as well as governments, as long, at least, as the threats aredesigned to advance a ‘‘political, religious or ideological cause’’. In the wake ofthis aspect of the decision, it is unclear how much remains of Communist Partyv Commonwealth (1951) 83 C.L.R. 1 in which the High Court held invalidan attempt by the Commonwealth to dissolve the Australian CommunistParty, as an illegal organisation, on the ground that it had no power todo so. In a powerful dissent, Kirby J. praised the ‘‘foresight, wisdom andprudence’’ of the Court in the era of the Communist Party case, by contrastwith the ‘‘constitutional era of laisser faire through which the Court is presentlypassing’’ ([386]–[387]).

The majority (Kirby and Hayne JJ. dissenting) also rejected the contentionthat the legislation contravened the strict constitutional separation of judicialpower. The plaintiff had argued that the powers being vested in judgeswere not judicial in character and therefore could not constitutionally beconferred on a court by Commonwealth legislation. The argument wasrejected for a combination of reasons that included loose analogies with powersthat historically had been exercised by courts in Australia or elsewhere andpragmatic acceptance that it was better for a court to exercise such powers thanfor other institutions to do so. Once such powers were conferred on a court,moreover, the majority justices were at pains to emphasise ‘‘the necessity for astrict adherence by the issuing courts to the standards which characterise judicialactivities’’ ([59]). The decision was confined to the validity of interim detentionorders only, challenges to other aspects of the regime may be expected in thefuture.

Australia—High Court of Australia judgment on constitutionality ofouster clause—Bodruddaza v Minister for Immigration and MulticulturalAffairs [2007] H.C.A. 14

Australia; Constitutionality; Judicial review; Limitations; Ouster clauses

Section 75(v) of the Constitution confers on the High Court jurisdiction inmatters in which ‘‘a writ of mandamus or prohibition or an injunction is soughtagainst an officer of the Commonwealth’’. It is clear that the section securesjudicial review on grounds that amount to jurisdictional error. In the recentdecision of Bodruddaza, the High Court held that the section also precludesan ouster clause that limits the period within which review may be sought, atleast when the effect of the time limitation is ‘‘inconsistent with the place of[s.75(v)] in the constitutional structure’’.


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Canada—Supreme Court of Canada judgment on detention onsecurity grounds—Charkaoui v Canada (Citizenship and Immigration)2007 S.C.C. 9

Canada; Constitutionality; Detention without trial; Foreign nationals;Immigration policy; Right to liberty and security; State security; Terroristinvestigations

The Immigration and Refugee Protection Act 2001 empowered the Canadianfederal government to issue certificates (Security Certificates) declaring theinadmissibility of foreign nationals or permanent residents on security grounds,and leading to the detention of those named in the certificates. In sum, theobject of this process was to facilitate the removal of non-citizens suspected ofposing a threat to the security of Canada. Both the certificates and the detentioncould be reviewed by a judge of the Federal Court of Canada, but in a processdepriving the individuals targeted of some or all of the most directly relevantinformation on the basis of which the certificate had been issued or the deten-tion ordered. The judge reviewing a certificate declaring someone inadmissiblewas given the responsibility for summarising the case against the individual con-cerned. A certificate found reasonable by the reviewing judge became a removalorder which could not be appealed and which was immediately enforceable.

Security certificates had been issued against Charkaoui and his co-appellantsand all had been detained for some time. They challenged the constitutionalityof the certificate scheme and detention review process on the basis of s.7(right to life, liberty and security of the person), s.9 (guarantee against arbitrarydetention), s.10(c) (guarantee of a prompt review of detention), s.12 (guaranteeagainst cruel and unusual treatment) and s.15 (equality rights) of the CanadianCharter of Rights and Freedoms. Recognising the peculiar threat raised byterrorism, a unanimous Supreme Court of Canada nevertheless held that somefeatures of the impugned legislative scheme were inconsistent with the Charter.

First, the procedure for the judicial confirmation of certificates and review ofdetention, with its mandatory non-disclosure of critically important evidence,was found to contravene s.7 in a manner that could not be redeemed under s.1(limitation clause) of the Charter. Secondly, the Supreme Court held that thedenial of a prompt hearing to foreign nationals violated ss.9 and 10(c) becauseof their arbitrary nature.

France—former President will participate in work of ConseilConstitutionnel2

Constitution of courts; France; Heads of state

On leaving office in 2007, Jacques Chirac (President 1995–2007), announcedhis intention to take part in the work of the Conseil Constitutionnel. The

2 David Marrani.



Conseil has evolved to fulfil a role akin to that of constitutional courtselsewhere in Europe, dealing with, inter alia, the review of legislation priorto its promulgation and monitoring the conduct of elections and referendums;it remains distinct in that individual citizens cannot petition it directly asoccurs, for instance, in Germany and Spain. While former heads of stateare ex officio members for life, previously only Giscard d’Estaing and thetwo Presidents of the Fourth Republic have taken up the opportunity tosit.

The former President joins another three members appointed in February2007 for a nine-year mandate. Jean Louis Debre, former Chairman of theAssemblee Nationale, (nominated by President Chirac to chair the Conseil),Renaud Denoix de Saint-Marc, former Vice-president of the Conseil d’Etat(nominated by the Chairman of the Senat) and, Guy Canivet, former FirstPresident of the Cour de Cassation (nominated by the Chairman of theAssemblee Nationale).

Germany—Federal Constitutional Court judgment onwiretapping—Second Senate, 3rd Chamber, 2 BvR 2151/06 of April30, 2007

Constitutionality; Germany; Investigatory powers; Legal profession;Police powers and duties; Telephone tapping; Victims

In 2003, Khaled El Masri, a German national, was kidnapped in the formerYugoslav Republic of Macedonia, transported to, and held (secretly) ina US prison in Afghanistan until 2004. The assumption in Germany isthat the kidnappers were CIA agents. In January 2006, a German courtpermitted the prosecutors investigating the kidnapping to tap his lawyer’soffice and private telephones. It was reasoned that media interest in thecase had increased in late 2005 rendering it possible that those behindthe kidnappers would contact him to offer a ‘‘silent solution’’ of the civilsuit he had instigated in the United States against the CIA. Upon thelawyer’s constitutional complaint the Federal Constitutional Court found aviolation of Art.10 (freedom of telecommunications) of the Basic Law (orConstitution).

Although telephone surveillance of non-suspects is permitted in relationto serious crimes, there must be reasons to believe that a suspect willuse the line. The Court was not convinced that there was an increasedprobability of a contact attempt since foreign newspapers had already reportedon the case in early 2005. The Court also held there to be a breach ofArt.12 of the Basic Law (free exercise of professions). It held that theinterference was not proportionate because unsupervised contact betweenlawyer and client is fundamental for the necessary trust between themand because lawyers also serve the public interest of a functioning justicesystem. These considerations outweighed the state’s interest in prosecuting thekidnappers.


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Germany—Federal Constitutional Court judgment onconstitutionality of German participation in the InternationalSecurity Assistance Force (ISAF) in Afghanistan—Second Senate, 2BvE 2/07 of July 3, 2007

Constitutionality; Germany; Military intervention; NATO; Parliament;Peacekeeping; Prerogative powers; Terrorism

In July 2007, the Federal Constitutional Court decided on the constitution-ality of the German contribution to the ‘‘extended ISAF mandate’’ (sendingreconnaissance airplanes) in Afghanistan. The German military have been par-ticipating in the ISAF since its establishment by the UN Security Council. Themandate, which aims at providing a secure environment for civil reconstruc-tion, was originally limited to Kabul and its surroundings, but it was extendedgradually to cover all of Afghanistan, including the Southern and Easternregions. There, a US-led coalition of States has been fighting terrorists underthe banner ‘‘Operation Enduring Freedom’’ (OEF) since October 2001. In2003, NATO took over the ISAF command. In November 2006, the NATOsummit of Riga declared that the fight against terrorists is necessary to establish asecure environment in Afghanistan. ISAF then requested aerial reconnaissanceand monitoring from Germany; the results were to be transmitted to OEF onlyif necessary for the success of ISAF operations or the protection of ISAF forces.The German parliament (Bundestag) consented to all these forms of Germanmilitary involvement.

In a procedure instituted by the socialist opposition party, the Court foundthat the Government had not infringed upon the constitutional prerogatives ofthe Bundestag by participating in the Riga Declaration or by sending the recon-naissance planes. It affirmed an earlier judgment according to which it could finda violation of the rights of parliament pursuant to Art.59(2)(1) of the Basic Lawonly if the Government’s actions exceeded the ‘‘fundamental structure’’ of theNATO Treaty. The Court declared that ‘‘common defence’’ was not limitedto the territory of the Member States, but could extend to that of the aggressorand could also encompass long-term stabilising missions if considered necessaryfor the security of the Euro-Atlantic area. In this respect, the Court pointed tothe Security Council’s repeated determination that the situation in Afghanistanconstituted a threat to international peace. It emphasised that in such a situation,it could not replace the Government’s evaluation of the situation by its own.

The Court also rejected the applicant’s submission that through itsinvolvement with OEF, NATO departed from its purpose of servinginternational peace, as required by Art.24(2) of the Basic Law:

‘‘With a view to maintaining peace, the Federation may enter into asystem of mutual collective security; in doing so it shall consent to suchlimitations upon its sovereign powers as will bring about and secure alasting peace in Europe and among the nations of the world.’’



First, ISAF and OEF are largely separated, and secondly, OEF is based on theUN Charter. Therefore, even single instances of violations of international lawby OEF would not amount to a systematic transformation of NATO’s role.

Germany—Federal Constitutional Court of Germany judgment onlawfulness of law requiring members of Bundestag to discloseremuneration for non-parliamentary activities—Second Senate, 2BvE 1/06, 2 be 2/06, 2 BvE 3/06, 2 BvE 4/06 of July 4, 2007

Constitutionality; Germany; Independence; Members of Parliament;Provision of information; Remuneration; Transparency

In an action brought by several members of the Bundestag, the FederalConstitutional Court was called to decide on the meaning and implication ofthe ‘‘free mandate’’ of MPs pursuant to Art.38(1)(2) of the Basic Law:

‘‘Members of the German Bundestag shall be elected in general, direct,free, equal, and secret elections. They shall be representatives of the wholepeople, not bound by orders or instructions, and responsible only to theirconscience.’’

At issue was a law prescribing that the parliamentary mandate must constitutethe centre of activities of MPs (‘‘the centre rule’’) and requiring them to disclosethe sources and amount of remuneration they receive from non-parliamentaryactivities (‘‘the disclosure rule’’). The Court unanimously considered the centrerule compatible with the Constitution; four of the eight justices, however,consented only under the condition that the centre rule is construed so as toexclude its use as the basis for any control of how MPs use their time. Withrespect to the constitutionality of the disclosure rule, the Court was evenlysplit (4:4) and thus unable to find a violation of the Constitution.

The two sides of the justices differed as to the meaning of independence.Those who considered the law unconstitutional deemed economicindependence of MPs through continued exercise of their profession aprotection from undue party pressure. The contrary opinion pointed tothe danger of MPs becoming dependent on special interest groups as clients,which they characterised as more dangerous, in particular because Art.21 ofthe Basic Law acknowledges the role of political parties.

With respect to the disclosure rule, the justices in favour of constitutionalityemphasised transparency as a means to ensure the people’s trust, outweighingthe MPs’ interest in data protection. They reinforced their conclusion byreference to constitutional developments in other countries. These justicesgrant Parliament a large margin of appreciation in regulating this issue. Theopposing view rejected the idea of a constitutional principle of transparencyand concluded from the special status of MPs as standing between state andsociety that their fundamental rights are equally important. This reduces themargin of appreciation of Parliament and requires closer scrutiny by theCourt.


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India—legitimacy of confidence vote passed with benefit oflegislators formerly not part of governing party—Rajendra Singh Ranav Swami Prasad Maurya MANU/SC/0993/2007

Constitutionality; Governments; India; Members of Parliament;Parliamentary disqualification; Parliamentary proceedings; Political parties

Under the Tenth Schedule to the Indian Constitution, Speakers of legislativeassemblies have the authority to adjudicate on the constitutionality of defectionby legislative members of any political party. In particular, a split is valid if thenumber of members defecting is more than one-third of the total number ofmembers in the party. In Rajendra Singh Rana, the Supreme Court concludedthat the Speaker must first rule on the question of disqualification of defectingmembers before recognising the validity of any new grouping. Secondly, theCourt concluded that the decision about the validity of the split must bedecided at the time at which the split occurs as opposed to the date on whichthe matter is processed for hearing before the Speaker. That is, a defection isvalid only if one-third of the members defect together rather than sporadically;consequently, any confidence vote won with the benefit of defecting members,if those members defected piecemeal over time, could not stand.

India—‘‘Cash for questions’’—existence and reviewability of powerto expel MPs—Raja Ram Pal v Honourable Speaker, Lok Sabha (2007) 3S.C.C. 184

Constitutionality; Expulsion; India; Judicial review; Members ofParliament

Eleven members belonging to both Houses of Parliament were caught oncamera accepting money from undercover journalists for raising questionsin Parliament. With no reason to disbelieve the video-footage, and after aninternal investigation, Parliament adopted motions expelling the members. Itwas argued expulsion was outside Parliament’s competence. The SupremeCourt (by a majority) rejected that contention, though affirmed that theexercise of such power was subject to judicial review.

India—Supreme Court of India judgment on the ‘‘basic structure’’doctrine and inability of legislature to exclude review on the basis ofbreach of fundamental rights—I.R. Coelho v State of Tamil Nadu (2007)2 S.C.C. 1

Constitutional reform; Constitutional rights; Constitutionality; India;Review grounds

Certain features of the Indian Constitution are considered so basic that theymay not be abrogated even by a constitutional amendment—the ‘‘basic struc-ture’’ doctrine. On the other hand, the Ninth Schedule to the Constitution



incorporated through Art.31B immunises legislation included in that Schedulefrom judicial review on grounds that it ‘‘is inconsistent with, or takes awayor abridges’’ any of the fundamental rights conferred by the Constitution. InCoelho the relationship between the Ninth Schedule and the basic structuredoctrine was considered. Explaining the relationship, the Supreme Court heldthat any legislation abrogating or abridging fundamental rights and violativeof the basic structure must be invalidated notwithstanding its inclusion in theNinth Schedule.

For the purpose of determining any infraction of the basic structure, the‘‘actual effect and impact’’ of the law on the fundamental rights must betaken into account. Finally, if the validity of any legislation included in theNinth Schedule has already been upheld, it would not be open to challengesuch law again on the principles declared by the judgment. However, if anylegislation held to be violative of fundamental rights has been incorporated inthe Ninth Schedule after the doctrine of basic structure was judicially declared,such a violation remains open to challenge on the ground that it destroys ordamages the basic structure as indicated in Art.21 (guaranteeing right to lifeand personal liberty) read with Art.14 (guaranteeing the right to equality) andArt.19 (guaranteeing certain fundamental freedoms).

Israel—tensions between Justice Minister and Supreme Court ofIsrael

Administration of justice; Appointments; Israel; Judges; Judicialindependence

The appointment of a new Minister of Justice, Daniel Friedmann, in February2007, saw the outbreak of notably personal tensions between the executiveand Supreme Court of Israel which threaten to change not only the ‘‘rulesof the game’’ between politicians and judges, but also the constitutional laws ofIsrael. The conflict has a background. Friedmann, a distinguished professor ofprivate law, was allegedly appointed by Prime Minister Olmert mainly becauseof his (Friedmann’s) critical views on the Supreme Court. In his newspapercolumns Friedmann has attacked the Supreme Court, focusing especially on itsnew president, Justice Beinish. Friedmann has gone so far as to say there werebetter candidates than Beinish to lead the Court. The new Justice Minister’scriticisms started shortly after his colleague and friend Professor Nili Cohen wasnot appointed to the Supreme Court, in part as a result of Beinish’s opposition.

Immediately after his appointment, Friedmann proposed radical reformsto the judicial system. One reform already approved by the Knesset limitsthe terms of the Chief Justice and Deputy Chief Justice, to seven years.Friedmann’s further list of reform projects (for discussion in the Knesset inlate 2007) includes a greater political role in the appointment of judges andthose who exercise independent functions within the Ministry of Justice,(importantly, the Attorney General and the Head of Public Prosecution), and aproposal to introduce a Canadian style legislative override clause allowing theKnesset to save legislation struck down by the Supreme Court.


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New Zealand—Supreme Court of New Zealand judgment on reviewof security risk certificate—special advocates—Zaoui v Att Gen [2005]1 N.Z.L.R. 577—Zaoui v Att Gen [2006] 1 N.Z.L.R. 2893

Bail; Confidential information; Deportation; New Zealand; Refugees;State security; Terrorist investigations

The review of Ahmed Zaoui’s security risk certificate before the Inspector-General of Intelligence and Security (a retired High Court judge with awatchdog role over the New Zealand Security Intelligence Service) beganmore than four years after Zaoui’s arrival in New Zealand. During that period,Zaoui, an Algerian, gained refugee status, and was made the subject of the first-ever security risk certificate issued by the New Zealand Intelligence SecurityService (s.114D of the Immigration Act 1987). He also initiated two sets of legalproceedings that reached the Supreme Court. In the first, the Court grantedhim release on bail pending the Inspector-General’s decision (Zaoui v Att Gen[2005] 1 N.Z.L.R. 577). In the second, the Court clarified the parameters ofthe Inspector-General’s review and limited the executive’s power to deportZaoui by requiring the exercise of that power to be consistent with NewZealand’s domestic and international human rights obligations (Zaoui v Att Gen[2006] 1 N.Z.L.R. 289).

A major issue relating to the review concerned the use of classified securityinformation, to which neither Zaoui nor his lawyers would have access. Zaouiwon the right to obtain an appropriately edited summary of the allegationsagainst him (Zaoui v Att Gen [2004] 2 N.Z.L.R. 339). The Inspector-Generalalso appointed two special advocates to test the classified security informationagainst Zaoui during the sessions of the review from which Zaoui and hislawyers would be excluded. The special advocates were to operate under similarconstraints as their equivalents in the United Kingdom, including the restrictionon communications once they had seen the classified security information.

In September 2007, in the midst of the Inspector-General’s review, theDirector of the Intelligence Service decided that Zaoui was no longer asecurity risk, and withdrew the security risk certificate. Having promised torespect New Zealand law and to stay in contact with the Intelligence Service,Zaoui will now be permitted to remain in New Zealand.

New Zealand—High Court of New Zealand judgment on continueddetention of those who are subject to removal orders under theImmigration Act 1987—Yadegary v Auckland Central Remand Prison[2007] N.Z.A.R. 4364

Detention; Foreign nationals; Lawfulness of detention; New Zealand;Removal

3 John Ip.4 Treasa Dunworth.



In Yadegary, the High Court considered the lawfulness of continued detentionof those who are subject to removal orders under the Immigration Act 1987.Section 60(7) of that Act sets out the general rule that no person should bedetained for longer than three months. Section 60(6) operated as an exceptionwhereby a person who was obstructing the removal process would not havethe benefit of s.60(7), but would only be released if there were ‘‘exceptionalcircumstances’’.

The legislation in its current form had been enacted in response to an earlierdecision whereby a detainee who refused to sign a passport application wasreleased because the statutory three-month limitation had expired. The Courtfound that the parliamentary intention was clear: that it was unacceptable thata person should secure release through deliberately obstructing the removalprocess. However, the statutory language was not absolute and in that respectthe Court contrasted it to s.196 of the Migration Act 1958 (Cth) in Australia,considered in Al-Kateb v Godwin [2004] H.C.A. 37.

In determining whether there were ‘‘exceptional circumstances’’ that wouldjustify release, the Court adopted the principles enunciated in R. v Governor ofDurham Prison Ex p. Hardial Singh [1984] 1 W.L.R. 704. The Court consideredthat Yadegary had no criminal convictions, was of good character and evinced alow risk of absconding. It accepted evidence that the detention was detrimentalto his mental health, took into account the length of detention (two years athearing date) with the prospect of at least another year before arrangementsfor removal could take place. The Court placed significant weight on MrYadegary’s continued obstructiveness in securing his removal, but noted it wasnot a trump card (at [64]). The Court concluded that further detention wouldbe unreasonable on Hardial Singh principles, and so ‘‘exceptional circumstances’’existed for the purposes of s.60(6) and Yadegary was entitled to conditionalrelease.

New Zealand—Supreme Court of New Zealand judgment onreverse onus of proof in criminal cases, judicial approach toobligation to interpret legislation consistently with fundamentalrights under the New Zealand Bill of Rights Act 1990—Hansen v R.[2007] N.Z.S.C. 75

Constitutional rights; New Zealand; Reverse burden; Right to fair trial;Statutory interpretation

In Hansen, the Supreme Court was asked to interpret another enactmentconsistently with the rights affirmed by the New Zealand Bill of Rights Act1990, as required by s.6 of that Act (the equivalent of s.3 of the Human RightsAct 1998 (UK)). The enactment was a criminal law reverse onus provision.Parting company with the House of Lords in the similar case of R. v Lambert[2002] 2 A.C. 454, the Court refused to read this as imposing a mere evidential

5 Hanna Wilberg.


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burden, despite a majority ruling that the full reverse onus was in breach of aright affirmed in the New Zealand Bill of Rights Act.

Two of the five judges expressly declined to follow the ‘‘adventurous’’approach to s.3 adopted by the House of Lords. All but the Chief Justiceconsidered that s.6 displaces a provision’s natural meaning only if a morerights-consistent alternative is ‘‘genuinely open’’ in light of the provision’s‘‘text and its purpose’’. Moreover, two judges considered it highly relevantthat the natural meaning was supported by evidence of how the provision wasunderstood at the time of enactment.

While none of the judges saw any relevant difference between the wordingof s.6 of the Bill of Rights and s.3 of the Human Rights Act, some foundsupport for the difference in approach in the legislative history of s.3. TheCourt’s purposive qualification on s.6 effectively mirrors an express provisionin recent Australian human rights legislation (s.32(1) of the Charter of HumanRights and Responsibilities Act 2006 (Victoria)).

South Africa—reforms affecting Constitutional Court andindependence of the judiciary

Constitutional law; Constitutional reform; Courts; Judicialindependence; South Africa

Judicial independence may be under threat in South Africa. The Constitutionasserts the independence of courts firmly but the transition from apartheid in1994 required more. Accordingly, in 2005 the Department of Justice releasedfive Bills on the judiciary. Amongst many unremarkable provisions werea number, including a constitutional amendment, with a direct impact onfundamental constitutional matters: the relationship between the executive andthe judiciary and the role of the Constitutional Court.

Three proposals concerned the independence of the judiciary. They wouldhave: (i) shifted the authority to appoint the heads of the High Courts from theJudicial Service Commission to the President; (ii) given the Minister of Justice‘‘final responsibility over the administrative functions, including the budget, ofall courts’’, while making the Chief Justice ‘‘head of the judicial authority’’ with‘‘final responsibility over the judicial functions of all courts’’; and (iii) given theMinister of Justice control over the rules of court. Provisions in a draft SuperiorCourts Bill inter alia regulating leave in superior courts and establishing an‘‘Office of the Chief Justice’’ staffed by the Department of Justice, confirmedfears that the new proposals allowed unacceptable intervention by the executivein judicial matters.

Widespread objections to the Bills led President Mbeki to withdraw them inmid-2006. However, in June 2007, a policy conference of the ruling AfricanNational Congress confirmed the proposals and it is likely that they will bereintroduced, now with the full backing of the party.

A further proposal is to convert the Constitutional Court, which currentlyhas jurisdiction over constitutional matters only, into a common-law styleSupreme Court with the power to hear all matters. Even critics of this



proposal accept that the distinction between constitutional and other mattersis ‘‘illusory’’ and that an extension of the Court’s jurisdiction is appropriate.6

However, they argue that a simple extension of jurisdiction is inadequate.Attention must also be paid to the structure and composition of the Court andhow it should determine what matters to hear.

South Africa—Supreme Court of Appeal decision on media andfreedom of expression—Midi Television (Pty) Ltd v Director of PublicProsecutions (Western Cape) unreported, Supreme Court of AppealCase No. 100//06, May 18, 2007

Broadcasts; Criminal procedure; Freedom of expression; Prejudice;Right to fair trial; South Africa

In Midi, Nugent J.A. railed against the ‘‘facile assumption that if there is anyrisk of prejudice to a fair trial, however speculative, [a ban on publication]should be ordered’’. The case involved the broadcasting of a documentary thatincluded interviews with witnesses to the brutal murder of a six-month oldbaby in Cape Town. Nugent J.A.’s ruling establishes a high standard for futurecases by holding that:

‘‘What is required . . . before a ban on publication will be considered is ademonstrable relationship between the publication and the prejudice thatit might cause . . . substantial prejudice if it occurs, and a real risk that theprejudice will occur.’’

Spain—legislation on financing of political parties—Ley Organica8/2007, de 4 de julio, sobre financiacion de los partidos polıticos,Boletın Oficial del Estado. July 5, 2007

Political donations; Political funds; Political parties; Spain

Passed in July 2007 (though notably without the support of the PopularParty—the main opposition party), the Financing of Political Parties Actaddresses the economic activities of political parties and associations. TheAct guarantees sufficient financial resources for political parties and enhancessupervision of their finances, imposing more exacting duties of transparency.The choice made was for a ‘‘mixed’’ system, i.e. one that combines privateand public resources although in a decidedly unbalanced manner, with publiccontributions to outweigh private ones.

The strong dependency of political parties on public subsidies has beenoccasionally criticized but legislators appeared to consider it an antidote againstcorruption and a guarantee of fair play in electoral competition. Among

6 Carole Lewis, ‘‘Reaching the Pinnacle: Principles, Policies and People for a Single Apex Court inSouth Africa’’ (2005) 21 South African Journal on Human Rights 509 at p.519.


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the novelties introduced by the new regulations, is the banning of anony-mous donations and the establishment of new limits on private contributions(¤100,000 per year, per donor). For the first time, foundations and other‘‘non-profit’’ associations linked to political parties will be submitted to similarreview and restrictions in their economic activities.

Spain—reform of the Spanish Constitutional Court—Ley Organica6/2007, de 24 de mayo, Boletın Oficial del Estado, May 25, 2007

Appointments; Constitutional law; Courts; Judges; Spain

The Organic Law of the Spanish Constitutional Court, in addition to settingout the composition, organisation, and status of the members of the Court,also contains the procedural code which governs how the Court deals withconstitutional matters. Since its approval in 1979 the law has been modifiedon a number of occasions, yet none of the prior reforms had the scope andambition of the most recent of May 2007. Potentially, at least, the reformmay lead to dramatic changes in the internal dynamics of the Court and, moreimportantly, in the way it deals with cases coming before it.

The most significant procedural reforms are to the admission stage for amparos(individual constitutional claims), and the augmenting of the competences ofthe panels (Salas) derived from the Plenum.7 Although the explicit purposeof these reforms is to increase the Court’s efficiency, the changes may alsoaptly be described as likely to induce a change in the Court’s work ‘‘philos-ophy’’ rather than simply in its ‘‘mechanics’’. In the future the amparo will bereserved for cases of clear constitutional import (independently of the gravityof damnum suffered by the individual) and the intervention of the Plenum inconstitutional review or in conflicts of jurisdiction will depend on the noveltyof the constitutional questions raised.

The reforms are occurring during a tumultuous period for the Court,busy as it is with constitutional controversies grown of hot political issues,(for example, same-sex marriage, extensive regulation of gender affirmativeaction, new Estatutos de Autonomıa (the ‘‘constitutions’’ of the autonomouscommunities Spain is divided into), and the reform of the ConstitutionalCourt). It is also under pressure as the media report almost daily on conflictsinside a Court evenly divided along ideological lines. The termination, inDecember 2007, of the mandate of a third of its members (including thePresident) will allow for the entrance of new judges, a circumstance that couldalter the present ideological composition of the Court. The four vacancies areto be filled by candidates selected by the Senate. The modified law of theCourt requires that the preferences of the Autonomous Communities be takenformally into account for the first time. It will not be surprising if they proposecandidates with an eye on the pending reviews of constitutionality of theirnew Estatutos de Autonomıa.

7 The plenary complement of 12 judges is divided into two Salas of six judges each.



United States—US Supreme Court changing jurisprudentialdirection with new Justices—overview of October Term (OT) 20068

Appointments; Certiorari; Freedom of expression; Judges; Racerelations; Supreme Court; United States

In his dissent read from the bench on the last day opinions were announcedin OT 2006, Justice Stephen Breyer lamented (while announcing his dissentin Parents Involved in Community Schools v Seattle School District 127 S. Ct. 2738(2007)), ‘‘it’s not often in law that so few have changed so much so quickly’’.June 2007 marked the end of the first full US Supreme Court Term with newappointees Chief Justice John Roberts and Associate Justice Samuel Alito. After11 years of unchanging membership, the Term saw a number of decisions thatmarked a distinct change of direction, two of which involve significant shiftsfrom recent prior decisions.

For example, the United States has struggled for decades over howto regulate campaign financing consistently with the First Amendment’sprotection of free speech. In McConnell v Federal Election Commission, 540 U.S.93 (2003), the Court had rejected a facial challenge to a 2002 statute thatprohibited ‘‘any corporation’’ from broadcasting, ‘‘shortly before an election,any communication that names a federal candidate for elected office and istargeted to the electorate’’. This provision was designed to prevent use of ‘‘issueads’’ to avoid expenditure limits on express candidate advocacy. This Term,however, in Federal Election Commission v Wisconsin Right to Life 127 S.Ct.2652 (2007), the Court concluded that ‘‘the interests held to justify restrictingcorporate campaign speech or its functional equivalent do not justify restrictingissue advocacy’’, just because a candidate is named, and invalidated the statute‘‘as applied’’ to such issue ads. Similarly, in Stenberg v Carhart, 530 U.S. 914at 930 (2000), the Court had found unconstitutional a state law banningso-called ‘‘partial birth abortions’’ because it ‘‘lack[ed] any exception ‘for thepreservation of the . . . health of the mother’ and was an ‘undue burden’ onthe right to choose an abortion’’. This Term, in Gonzales v Carhart 127 S.Ct.1610 (2007), the Court upheld a 2003 federal statute ban on ‘‘partial birthabortions’’, notwithstanding the absence of a health exception, as promotingthe Government’s interest in respect for life; ‘‘medical uncertainty’’ (whetherhealth would ever require use of the banned procedure) precluded invalidationon a facial challenge. An unusually biting dissent by Justice Ginsburg criticisedthe Court’s departure from Stenberg.

Finally, a set of cases involving efforts by local school systems to maintainracial integration in public (i.e. state) schools by considering race in pupilassignments yielded a closely divided decision invalidating the assignmentsystems: Parents Involved in Community Schools v Seattle School District, 127 S.Ct.

8 The US Supreme Court’s yearly term begins on the first Monday of October. The Court typicallyhears arguments from October through April, and continues to release opinions through the end ofJune, adjourning until the subsequent first Monday of October. October Term 2006 refers to theperiod October 2, 2006 to October 1, 2007.


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2738 (2007). Though the factual circumstances differ, the failure to extend thereasoning of Grutter v Bollinger, 539 U.S. 306 (2003), upholding the use of raceas one factor in law school admissions, was notable.

Turning to the docket, the US Supreme Court has nearly total discretionthrough its certiorari jurisdiction to decide in which, of the approximately9,000 petitions it receives each term, it will grant review. The number of casesheard by the Court has fallen over the past 20 years, culminating in a record low78 cases argued during OT 2006 (by contrast, the Court granted review in 175cases in October Term 1988). One interesting development is in the increasingpercentage of argued cases involving business issues—nearly 40 per cent of thecases granted review in OT 2006. An important public law development didtake place at the very end of the Term though, when the Court—in an unusualdecision reversing its earlier denial of certiorari—agreed to hear constitutionalchallenges by Guantanamo detainees to the Military Commission Act of 2006’srestrictions on courts’ jurisdiction (Boumediene v Bush, No.06-1195, certiorarigranted June 26, 2007; see also Military Commissions Act, Pub. Law No.109-366). In two prior decisions the Court had upheld the jurisdiction offederal courts to consider petitions from Guantanamo detainees, in the face ofgovernment claims that jurisdiction was lacking, and a prior federal statute thatsought to restrict jurisdiction (see Rasul v Bush 542 U.S. 466 (2004); Hamdanv Rumsfeld 126 S.Ct. 2749 (2006)).

Early in his tenure, Chief Justice Roberts expressed a desire for greaterunanimity in decisions, because 8:1 or 9:0 decisions ‘‘give more confidencein and stability to the law’’.9 In his first term as Chief Justice, the number ofunanimous decisions of the Court increased (37 per cent in October Term2005, with a further 11.6 per cent in which there were no dissents). In OT2006, however, the unanimity rate dropped below the rate in Chief JusticeRehnquist’s final Term (to 23.9 per cent). There was also an increase in 5:4decisions, over the prior Term (from 16 to 23). The issues before the Courtultimately determine the degree of unanimity that can be expected and, asOT 2006 reminds us, the Chief Justice’s ability to achieve greater consensus islimited.

9 See http://abcnews.go.com/Nightline/story?id=2661589&page=1 [accessed November 16, 2007], fora transcript of the ‘‘Nightline’’ interview with Jan Crawford Greenburg.


Government and Politics Journals 189

Government and Politics Journals

British Journal of Political Science, Vol.38, No.1

Hellwig, T. and Samuels, D., ‘‘Electoral Accountability and the Variety of DemocraticRegimes’’, pp.65–90.

British Journal of Politics and International Relations, Vol.9, No.4

Jones, P., ‘‘The Logic of Expressive Collective Action: When will Individuals ‘Nail theirColours to the Mast’?’’, pp.564–581.Liddle, J., and Michielsens. E., ‘‘‘NQOC’: Social Identity and Representation in BritishPolitics’’, pp.670–695.Morgan, J., ‘‘A Woman’s Place’’, pp.747–748.Widdecombe, A., ‘‘Feminizing Politics: A Review’’, pp.749–750.Lovenduski, J., ‘‘Feminizing Politics: A Reply to Ann Widdecombe and Julie Morgan’’,pp.751–754.

Comparative Political Studies, Vol.40, No.12

Crisp, B.F., ‘‘Incentives in Mixed-Member Electoral Systems: General Election Laws,Candidate Selection Procedures, and Cameral Rules’’, pp.1460–1485.Criado, H. and Herreros, F., ‘‘Political Support: Taking Into Account the InstitutionalContext’’, pp.1511–1532.Birch, S., ‘‘Electoral Systems and Electoral Misconduct’’, pp.1533–1556.

European Union Politics, Vol.8, No.4

Weber, T., ‘‘Campaign Effects and Second-Order Cycles: A Top-Down Approach toEuropean Parliament Elections’’, pp.509–536.Justesen, M.K., ‘‘The Social Choice of EU Treaties: Discrepancies between VoterPreferences and Referendum Outcomes in Denmark’’, pp.537–553.

Government and Opposition, Vol.42, No.4

Lundberg, T.C., ‘‘Electoral System Reviews in New Zealand, Britain and Canada: ACritical Comparison’’, pp.471–490.Moraski, B., ‘‘Electoral System Reform in Democracy’s Grey Zone: Lessons from Putin’sRussia’’, pp.536–563.


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Journal of European Public Policy, Vol.14, No.8

Special Issue—Political Agency in the Constitutional Politics of the European Union(Guest editors: Derek Beach and Thomas Christiansen)

Journal of Politics, Vol.69, No.4

Berinsky, A.J., ‘‘Assuming the Costs of War: Events, Elites, and American Public Supportfor Military Conflict’’, pp.975–997.Borowiak, C.T., ‘‘Accountability Debates: The Federalists, The Anti-Federalists, andDemocratic Deficits’’, pp.998–1014.

Journal of Public Policy, Vol.28, No.1

Lehmkuhl, D., ‘‘On Government, Governance and Judicial Review: The Case of EuropeanCompetition Policy’’, pp.139–159.

Parliamentary Affairs, Vol.60, No.4

Holmes, A., ‘‘Devolution, Coalitions and the Liberal Democrats: Necessary Evil orProgressive Politics?’’, pp.527–547.Sloam, J., ‘‘Rebooting Democracy: Youth Participation in Politics in the UK’’, pp.548–567.Fieschi, C., ‘‘It’s a Civic Christmas’’, pp.691—99.Gibbons, V., ‘‘Lights, Camera, Inaction? The Media Reporting of Parliament’’, pp.700–708.

Political Studies, Vol.55, No.4

McLaren, L. and Johnson, M., ‘‘Resources, Group Conflict and Symbols: ExplainingAnti-Immigration Hostility in Britain’’, pp.709–732.


Book Reviews 191

Book Reviews

The Court of Appeal. By Gavin Drewry, Louis Blom-Cooper and CharlesBlake. Hart Publishing, Oxford, 2007. 196 pp. Hb. £30.00.

Civil procedure has long been the Cinderella of legal studies, unfashionable and unloved,but responsible for much of the work that needs to be done. But Cinderella finds herprince, and Lord Woolf’s reforms have given civil procedure the attention it deserves.Drewry, Blom-Cooper and Blake shine their spotlight on the Court of Appeal, a hithertoacademically neglected subject but the pivotal court of our legal system, to examine how itis performing and how it could be improved.

The authors rightly emphasise that, in practical terms, the Court of Appeal is the finalcourt of appeal for other than public law cases. The Appellate Committee of the House ofLords rightly does not see its role as correcting errors in the application of settled law, ithears very few cases a year, and a very large proportion of them are human rights and otherpublic law disputes. This study identifies (with the assistance of interviews with the thenMaster of the Rolls, Lord Phillips of Worth Matravers, and 10 other Lords Justices) howthe working practices of the Court have changed and improved over recent years.

After the domination of the Court by the personality of Lord Denning (Master ofthe Rolls 1962–1982), Lord Donaldson (Master of the Rolls 1982–1992) introduced newworking practices to reduce the delays in hearing cases. Counsel were required to producewritten skeleton arguments. Judges began to spend part of their working life out of courtpreparing for the hearing rather than coming to the case knowing little more than theoutline until counsel began their oral submissions. Hearings were reduced in length. Withthe assistance of the Woolf reforms and the review of the Court of Appeal’s practices by SirJeffrey Bowman (formerly senior partner in PricewaterhouseCoopers), judges have becomecase managers, and greater efficiency, without the sacrifice of high quality and customersatisfaction, has been the objective, and the achievement, of the court in recent years.Drewry, Blom-Cooper and Blake make a very persuasive case on most of the main issuesthey address. They approve of the modern requirement (in all but exceptional cases such asthose involving personal liberty) for leave to appeal because it enables the Court to focusits main resources on properly arguable cases. They contend that the case preparation byjudges has not diminished the importance of oral advocacy, but focused it on the centralissues in dispute. They politely encourage judges to give shorter judgments. In that respect,as in so many others, the model is Sir George Jessel, Master of the Rolls 1873–1883,whose command of the common law was so great that he rarely reserved judgment. Theyidentify the very serious problem posed by litigants in person, many of whom use thevaluable resources of the courts as a substitute for psychotherapy when pursuing hopelessapplications. Drewry, Blom-Cooper and Blake make the sensible proposal that court timecould and should be saved by introducing a requirement that if a litigant wishes to makean application for permission to appeal at an oral hearing, he or she must be represented bycounsel.

As this book explains, the Court of Appeal’s relationship with the Appellate Committeeof the House of Lords (to become the Supreme Court in 2009) has changed. From 1952 to1968, over 75 per cent of appeals heard by the House of Lords had received leave to appealfrom the Court of Appeal. Today it is very rare for the Court of Appeal to grant permissionto appeal. Blom-Cooper, Drewry and Blake suggest that it may be appropriate to providethat leave to appeal may only be given by the new Supreme Court.


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The authors could usefully have found space, alongside some of the statistical tables, formore information derived from their interviews on what it is actually like to work as aCourt of Appeal judge. In 1980, Lord Roskill, after being elevated to the House of Lords,complained that the work load in the Court of Appeal was ‘‘intolerable; seven days a week,14 hours a day’’, and referred to a colleague who had ‘‘gloomily remarked that until hehad become a member of the Court of Appeal he had wrongly thought that slavery hadbeen abolished’’. And the authors are unnecessarily worried (at least in the experience ofthis reviewer) that there is a danger of ‘‘imbalance’’ and ‘‘dominance’’ at the hearing by aspecialist judge who has studied the papers in advance and who sits with two generalists.

But this is an important study. In R. v Justices of the County of London [1893] 2 Q.B. 476at 492, Bowen L.J. stated that ‘‘if no appeal were possible . . . this would not be a desirablecountry to live in’’. Drewry, Blom-Cooper and Blake’s stimulating analysis should be readby anyone interested in the business of the most important court in our legal system.

David Pannick Q.C.*

British Government and the Constitution: Text and Materials. By ColinTurpin and Adam Tomkins. Cambridge University Press, Cambridge, 2007. 847 pp.Pb. £35.00.

Whenever a new author takes over a much-loved work many readers instinctively fear thepossible extent of change. Colin Turpin’s British Government and the Constitution has longbeen such a work, but the new sixth edition has acquired a co-author in Professor AdamTomkins who has his own distinctive approach to problems of the British constitution. Anyfears that this student classic would have become instantly republicanised may, however,be firmly quashed. A quick comparison of the fifth and sixth editions reveals how littlehas really changed. There is some useful restructuring, particularly in the first chapter onthe constitutional order, and the updating is extremely valuable, but swathes of the textare left unaltered and most importantly there has been no change in that careful, thorough(if occasionally a little dense) style that aims to give the reader as much information aspossible. That is not to say that Tomkins has made no impact; there are noticeably morereferences to the approach in Scottish law than in previous editions, and the reiteratedfocus on constitutional theory in the first two chapters especially is particularly interesting.Questions about democracy and the role and definition of the state are important to raisewhen considering a constitutional structure, and Turpin and Tomkins open up the issues,albeit briefly, more clearly than previous editions and rival textbooks.

One can sense a kind of dual approach being taken by the authors. For the law student,and invariably a first-year one, there is much material to get to grips with in order tograsp the theoretical and practical intricacies of the British constitution, but Turpin andTomkins provide a guide that is both immensely detailed and admirably clear. For example,the discussion of parliamentary sovereignty and the associated views is lucid and thoroughwithout being overly partisan. It might have been useful to develop the Waldron-style pointsmade in some of the materials about the judiciary being undemocratic, but space is alwaystight. The second approach is to aid the reader who is looking for more depth. In this,British Government and the Constitution has always been immensely useful. The text is litteredwith references to sources of further information. Many are the obvious ones, but many arefar less well-known and the cross-disciplinary references, especially to contemporary workson British politics, will often be invaluable.

Admirable though the desire to avoid appearing one-sided in particular debates is,sometimes the readers are left to do too much work themselves. The authors have a slightlyunnerving habit of including very long chunks of a judicial opinion, and then moving onas though there was nothing more to be said. This happens a number of times throughoutthe book, but it is especially unfortunate when the authors have themselves made plain thatthe decision is controversial. In a case such as Prolife Alliance1 where a dissenting judgment is

* Blackstone Chambers, London.1 R. (on the application of Prolife Alliance) v BBC [2003] UKHL 23; [2004] 1 A.C. 185.


Book Reviews 193

also quoted at length the problem is less acute, but in dealing with a problematic case suchas M v Home Office2 some critical analysis is surely required (pp.89–93)? Certainly studentswould welcome something to work from, but other readers will surely ask themselves whatprecisely the authors really think about such key decisions. The point is made all the moreimportant by the knowledge that when they do discuss a case critically, as with the BelmarshDetainees case3 (pp.762–772), it is done with such clarity and contextual detail that thereader is pulled into the analysis and engages with the material much more fully.

Some of the constitutional issues raised also perhaps warrant more attention being paid tothem. The discussion of the separation of powers in Ch.2 as it actually pertains to the Britishconstitution is probably faultless, but there is very little talk of why the separation of powersmight be important or valuable. Should we think of it as a doctrine to prevent tyranny, toaid efficiency or both? The history and evolution of the doctrine of ministerial responsibilityin Ch.9 is both interesting and up-to-date, but it moves on without really trying to answerwhere the convention is now. Are ministers responsible, accountable, neither, or is theresome other plausible solution? Most student textbooks would not try to answer thesequestions, but they usually do raise them as an area to consider. The unwillingness to gointo much detail on the ultra vires debate (pp.656–658) is understandable, but to raise thethorny issue of deference and then treat Farrakhan as though it were the last word on thematter (pp.680–682) surely cannot be sufficient. What these criticisms are really driving at isthe apparent unwillingness of the authors at key points to engage with the really interestingnormative questions. Obviously, any detailed analysis of the different normative approachesavailable to any particular question would involve further time and space in what is alreadya hefty work, but this reviewer would have liked to see at least a mention of some of thedifferent viewpoints on issues such as the separation of powers and constitutional reform.

Perhaps if space were needed some judicious cutting could be done on the chapters andsections of more obvious relevance to a student of politics than of law or of the constitution.The treatment of ‘‘parties, groups and the people’’ in Ch.8 is finely detailed, but overlydescriptive and is unlikely to figure on most constitutional law reading lists. Having saidthat, the lengthy introduction to the law of the European Union in Ch.5—which one mightthink could be read in other more specialised works—is so well done that it is probablyeven suitable as a revision aid to EU law students, let alone domestic constitutional ones.Although the structure has been improved since the fifth edition, a reader wanting to knowabout the prerogative is forced to jump around Chs 3, 6, 7 and presumably 10 to get a fullpicture, with the split between the material in Chs 6 and 7 seeming particularly unfortunate.It is also disappointing that the vital development in Nadarajah4 on proportionality andlegitimate expectations is unmentioned in either area, despite it being cited in relation tothe Immigration Rules having legal impact (p.478).

All the criticisms made in this review seem rather minor and nit-picking. They are. Itis difficult to make any foundational attacks on a work that is not attempting to make anargument, and more importantly, does what it sets out to do so well. Even the typographicalerrors that usually litter such publications were few and far between. The fact is that Turpinand Tomkins have produced a textbook (and despite it containing materials, it is primarilya textbook) which is masterly in its treatment of a convoluted and evolutionary area ofcross-disciplinary impact. It should be essential reading for students of constitutional law, anda valuable resource for those looking to think about the British constitution in more depth.Law and politics are never more intertwined than when investigating the constitution, andit is a measure of the mastery of both by the authors that the two fade in and out withoutundue confusion. Any reader looking for the British constitution, how it works and whereit does not, will find no better introduction than British Government and the Constitution.

C.J.S. Knight*

2 M v Home Office [1994] 1 A.C. 377.3 A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 A.C. 68.4 R. (on the application of Abdi and Nadarajah) v Secretary of State for the Home Department [2005] EWCA

Civ 1363.* College Lecturer in Law, Christ Church, Oxford.


194 Public Law

Civil Justice in the Age of Human Rights. By Joseph M. Jacob. AshgatePublishing, Aldershot, 2007. 251 pp. Hb. £65.00.

Ten years ago two pieces of legislation were introduced that had a fundamental effect oncivil justice in England and Wales. The first, the Civil Procedure Rules 1998 (SI 1998/3132)(CPR), introduced ‘‘a new procedural code with the overriding objective of enabling thecourt to deal with cases justly’’ (CPR 1.1). The particular significance of the CPR from apublic law perspective is that the judiciary were given a very wide discretion in their casemanagement powers in order to meet the CPR’s Overriding Objective. This was in markedcontrast to the paradigm of the preceding Rules of the Supreme Court, which had been thatthe Court acted as a largely passive umpire for an adversarial dispute between private parties.The second piece of legislation, the Human Rights Act 1998 (HRA), had a less immediatelyobvious impact. Most judicial and academic attention has focused on the HRA’s impacton the constitutionally more fashionable subjects of the compatibility of primary legislationunder s.4 of the HRA, and of the acts of criminal justice and administrative bodies unders.6. The civil courts, although they have largely escaped attention to date, are neverthelesssubject to scrutiny under s.6(3)(a), particularly in relation to their compliance with Art.6(1)of the European Convention on Human Rights.

The difficulty, which Joseph Jacob examines in this book in meticulous detail, is that thedrafters of the CPR appear to have paid little or no regard to the extensive jurisprudence ofArt.6(1). We might consider this particularly surprising as the architect of the CPR, LordWoolf, is an authority on administrative law. However, we also have Woolf’s warning tocounsel in Daniels v Walker (Practice Note) [2000] 1 W.L.R. 1382, CA, that he hoped thatjudges would resist attempts to introduce Art.6 arguments into case management hearings.Woolf does not appear to have considered the Convention to have much bearing on civiljustice, and Jacob shows that to have been a significant oversight.

The CPR and the Convention provide ‘‘two new streams of procedural justice’’(p.7). One, the CPR, accompanied by other contemporary civil justice provisions, forexample regarding funding, is concerned with expediency and efficiency. The other, theConvention, is concerned with identifying a rational system for the recognition of humandignity and equality. There have not yet been any direct conflicts, but Jacob identifies aconsiderable number of areas, for example in relation to evidential privilege and publicinterest immunity, and the use of ‘‘without notice’’ hearings, where the jurisprudence ofthe CPR and Art.6(1) appear to take very different approaches. Is either of these streamsstronger than the other? The answer matters to more than just academic proceduralists.Rights, irrespective of whether ‘‘legal’’ or ‘‘human’’, are empty unless there are means fortheir enforcement. Moreover, Jacob is surely correct to say that the method of enforcementtells us something fundamental about society’s ‘‘underlying meaning’’ (p.3). So here theclash between the CPR’s expediency and the Convention’s recognition of dignity andequality takes on a new significance. This clash is a leitmotif that runs throughout the book,whether discussing ‘‘Open Justice’’, ‘‘Equality of Arms’’, ‘‘Disclosure and Restrictions onEvidence’’, or ‘‘Impartial and Independent Judges’’, the chapters making up the book. Itis not a conflict that allows of easy resolution. For example, if it is the case that there is aduty on the courts to publish their decisions, to support a constitutional principle that suchdecisions should be open to public scrutiny (pp.88–89), then should this cost of publicationbe borne by the parties (as the cause of judgment being given) or by the courts (as thebody under public scrutiny), and is this cost proportionate to the constitutional value of thepublic scrutiny?

This book is very heavy reading, and is correspondingly rewarding. This is for threereasons. First, Jacob departs frequently from his stated brief, of the impact of the HRAon the CPR, to examine recent developments in the principles that underlie English civiljustice more widely. This includes, for Jacob, the very fact that the pragmatic beast that wasthe common law is now keen to establish principles at all. The first and longest chapter,on ‘‘Open Justice’’, is based on Jacob’s own belief that openness is ‘‘the keel which givesboth stability and direction to the legal system’’ (p.45). A benefit of not keeping to thebrief is that Jacob will frequently depart from his main course to explore fully interestingavenues of inquiry. The second reason is that there is a thorough doctrinal examination ofpossible conflicts between the different emerging principles and practices, making extensivereference to the jurisprudence of our domestic courts and of the European Court of Human


Book Reviews 195

Rights. This includes, for example, consideration of whether provisions for the funding ofcivil litigation in England comply with the Convention requirement that there be equalityof arms, and with the right of access to the Court. This examination is extremely valuable,but its range and depth require yet greater concentration from the reader. The third reasonis that Jacob is working in an area that has received very little previous detailed examination,and he appears to have focused more on undertaking detailed analysis than on developingan overarching structure. It is therefore not always clear what line of argument some of thematerial is following. It is clear from Jacob’s conclusion that one of his principal concerns isthat what was then the Department for Constitutional Affairs (now the Ministry of Justice)is unduly involved in the civil justice system, in breach of the Convention (and presumablyalso of the domestic principle of the separation of powers). That concern is not immediatelyvisible in the analysis of the preceding chapters, although it does hearken back to his originalconcern about society’s underlying meaning.

Civil Justice in the Age of Human Rights marks a significant contribution by Jacob to thedevelopment of a jurisprudence of civil procedure as an expression of constitutional values,rather than as simply the rules of a private (and expensive) game between litigants. This isa development that is already underway elsewhere in Europe. In France, for example, laprocedure civile has frequently now been rebranded as le droit judiciaire, since it concerns inessence the conduct of the judiciary, one of the three elements of the democratic state, inits regulation of private affairs. Beyond the contribution of his own arguments, Jacob hasraised a considerable number of issues for further, profitable examination.

Deirdre M. Dwyer*

Transparency—The Key to Better Governance?. Proceedings of the BritishAcademy, Volume 135. Edited by Christopher Hood and David Heald. OxfordUniversity Press, Oxford, 2006. 225 pp. Hb. £30.00.

Transparency has become a widespread nostrum of good governance. For public lawyers,it is considered a prerequisite for effective and meaningful accountability, providing avital safeguard against the abuse of governmental power. Yet this collection of essays,written by scholars from a range of disciplines, throws considerable doubt upon the virtueof transparency, both as a coherent ideal and on the regimes and practices intendedto give expression to it in the practice of governance. The volume originated from aworkshop in 2005 hosted to coincide with the entry into force of the United Kingdom’sFreedom of Information Act, co-sponsored by the British Academy and the Economicand Research Council Public Service Programme. The result is a timely, thoughtful andthought-provoking collection which examines the theory and practice of transparencywithin governance regimes in a variety of national and EU contexts from a range ofdisciplinary and sub-disciplinary perspectives. The editors identify their three-fold aims asseeking: (a) to map the history of ‘‘transparency’’ and cognate doctrines in government andpublic policy; (b) to collect and compare ideas about transparency across different academicdisciplines; and (c) to take discussions of transparency beyond statements of first principles.

The volume is organised into three parts. Part I provides a helpful backdrop to thediscussion, with contributions by the collection editors on the theme of transparency asa term, an idea and a movement. Christopher Hood provides an illuminating intellectualhistory of transparency, seeking to map some of its various strains and meanings. Althoughtransparency has attained what he describes as ‘‘quasi-religious’’ significance in governancedebates, he identifies at least three strains of ideas about transparency that originate frompre-20th century ideas in different contexts and locations: that government should operateaccording to stable, predictable rules, as opposed to governance by discretion; that socialaffairs should be conducted with a high degree of frankness, openness and candour toensure the integrity of public officials; and a related idea that the social world should bemade knowable through methods analogous to the natural sciences. When he turns to 20thcentury doctrines of transparency, Hood identifies at least six or seven different locations

* British Academy Postdoctoral Fellow, University of Oxford.


196 Public Law

in which the term has become prominent, broadly organising them around three sitesof discussion: international governance within supranational institutions; national and sub-national government, particularly in relations between executive government and its citizens;and in corporate governance. Although all these ideas take some view of openness andrules and behaviour, their application to very different subjects and sometimes contradictoryunderlying doctrine, lead him to doubt that they add up to a single big idea. Nor are theynew or coherent. The historical and contextual map which he charts is complemented by theconceptual anatomy which David Heald provides in the following chapter. Heald sketchesthe outlines of an analytical framework based on a series of conceptual distinctions that seekto address the relationship between transparency and several related ideas and the differentways in which transparency may be designed to operate. Thus he identifies variation inthe direction of transparency (upwards/downwards, or horizontally outwards/inwards), itsorientation (event versus process), temporal character (retrospective versus real time) and itsquality (nominal versus effective). In seeking to understand the dynamics and effectiveness ofpolicy instruments intended to promote transparency, he emphasises the critical importanceof sensitivity to the context in which transparency measures and mechanisms are located.

The contributions in Part II explore the value of transparency from contrasting disciplinaryperspectives. It is here that the lofty ideals of transparency which public lawyers frequentlyespouse lie in a stark and somewhat uncomfortable opposition to the varied positionstaken by social scientists. Birkinshaw is the only legal scholar represented in the collection,proclaiming that transparency in the form of access to government information is so vital todemocracy that it deserves international recognition as a human right. To this end, he boldlyasserts that freedom of information is necessary for freedom of speech to have value, that it isa right of citizenship, and that it is fundamental to the expression of all other human rights.Yet he also acknowledges that the right is a qualified one, which must be balanced againstother human rights such as the right to life and the right to privacy, but he does not elaborateon how this balancing is or ought to be achieved. David Heald’s analysis of transparency isconsiderably more fine-grained and contextual. Unlike Birkinshaw, he does not characterisetransparency as a human right, but as a set of contested, non-linear relationships with othervalues, that sometimes clash and sometimes yield synergies. Where clashes arise, he pointsto two literatures which suggest that transparency might properly give way to other values:(a) economic approaches to social and policy analysis that explore the value of sunlightand warn of the danger of over-exposure, and (b) sociological literature demonstratingthe positive contribution of ignorance to social functioning, which may explain why thetrade-off observed by economists arises. He grapples directly with the value of transparencyand its potential to conflict with other valued goods, which he lists as: effectiveness, trust,accountability, autonomy and control, confidentiality, privacy and anonymity, fairness andlegitimacy. For Heald, transparency is of instrumental value, arising from its contributionto the primary values of effectiveness, trust, accountability and fairness. Careful attention tothe specific habitats in which transparency resides, as well as its directions and variety, istherefore required in order to make a meaningful normative assessment of its contribution.

While David Heald’s view of transparency is much more equivocal than that ofBirkinshaw, Onora O’Neil’s contribution is perhaps the most sceptical of all. She beginswith the paradox that it is generally presumed that transparency increases trust and thetrustworthiness of institutions, yet the growth of transparency in contemporary governancehas led to a decline in trust in public officials and institutions. She speculates on whythis paradox has arisen. For her, the answer lies in the distinction between transparencyand communication. Information, she observes, ‘‘is not like a homing pigeon: it does notwing its way to relevant and receptive audiences’’. It can achieve little unless the materialdisseminated is made accessible and assessable by relevant audiences, and actually reachesthose audiences. Thus for O’Neil, transparency is the ‘‘fifth wheel on the wagon of public,commercial and professional accountability’’, providing an incomplete basis for eithersecuring trustworthy performance or for placing and refusing trust. This incompletenessmay be at least partly explained by the principal-agent perspective outlined in Pratt’scontribution. From an economic perspective, transparency corresponds to the ability ofthe principal to observe what the agent does, so that in general, more information aboutthe agent’s behaviour makes the agent more accountable and more likely to work forthe good of the principal. However, excessive transparency may create incentives for theagent to behave in ways that damage the principal, and this might help to account for thecounterproductive tendencies which O’Neil observes in the practice of transparency.


Book Reviews 197

In Part III the discussion shifts from the abstract to the concrete by exploring theimpact of transparency on institutional behaviour. Taken together, the contributions inthis section evidence the ways in which laws intended to enhance transparency may bediluted, side-stepped and undermined by bureaucratic and institutional practice. Drawingon the experience of several Commonwealth countries, Alasdair Roberts argues that thelaudable aims of freedom of information laws of increasing trust in government andheralding a new culture of openness in executive government tend in practice to generatecontrary outcomes. He claims that governing institutions in Westminster systems haveproved particularly resilient, capable of rejecting freedom of information laws or developingnew routines to minimise their disruptive effect. He identifies several avoidance strategies,including direct challenges to the scope of the right (by adopting narrow interpretationsof disclosure obligations, and increasing fees for freedom of information applications) andinformal methods of resistance through changes to record-keeping practices, includingrefraining from creating records altogether. He also observes that the introduction of accessto information laws has also been accompanied by corresponding attempts by centralgovernment to exert tighter control over government information, to reduce informationleakages, and implementing warning systems designed to alert central communicationsstaff to potentially damaging freedom of information requests early in order to manage thegovernment’s response. Andrew McDonald, who was centrally involved in the developmentof the United Kingdom’s freedom of information laws, endorses Robert’s observation thatthe introduction of freedom of information legislation does not eliminate conflicts overthe disclosure of government of information, but simply shifts and shapes the terrainover which such conflicts take place. Because the broad notion of open government issufficiently capacious, allowing considerable variation in access to government informationregimes across jurisdictions, several significant methodological challenges are involved incomparative public policy. Roberts therefore calls for rigour in comparative analysis offreedom of information regimes, informed by an understanding of local political context,bureaucratic culture, scope of legislation, its practical value to applicants and an awarenessof the limitations of freedom of information statistics. Accordingly, he is wary of drawinggeneral conclusions from the examples of avoidance behaviour cited by Roberts, althoughhe accepts that public usage and understanding is limited, and that it has not delivered allthat its advocates hoped.

James Savage also considers how transparency obligations are vulnerable to evasion ormanipulation, but in the context of Member-State budgetary transparency in the Economicand Monetary Union. He draws on international relations perspectives to examine thechallenges posed in monitoring compliance with Member State transparency obligations,observing that the success of such monitors depends on their ability to create a ‘‘complianceinformation system’’, ie those rules, actors and processes that collect, analyse and disseminateinformation on violation and compliance. In particular, the effectiveness of such a systemdepends on its capacity to monitor and overcome the twin challenges to budgetarytransparency of disclosure (when political actors fail to provide credible budgetary datato the monitors) and interpretation (when governments wrongly categorise, intentionallyor otherwise, their data according to existing accounting rules). Savage’s contribution isa valuable reminder that attempts to evade transparency obligations can be found in thebehaviour of states in supranational contexts and are not confined to bureaucratic practiceswithin executive government at the national level. David Stasavage looks at a different facetof transparency within the European Union, testing the predictions of principal-agent theoryconcerning the effects of transparency on collective decision-making against the experienceof decision-making in the EU Council of Ministers. According to principal-agent theory,the more secretive a decision-making environment, the greater the likelihood representatives(agents) will take positions that deviate from the prior views of their constituents (principals)about policy. Yet secretive environments help produce compromises in bargaining and aremore likely to produce frank exchange of views and free deliberation about policies whencompared to more public venues. He argues that the experience of the Council of Ministersbears out these predictions. While secrecy of decision-making proceedings has led to aserious problem of accountability, allowing Member State representatives to say one thingin public and another in private, it has also facilitated attempts to strike bargains.

The two contributions in Part IV provide a window on challenges of transparencyand open government arising in the age of information technology, looking at two quitespecific issues which will seem rather alien to most public lawyers. Jean Camp examines


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the relationship between the openness of computer code and democratic government.She begins from the open software movement initiated by Richard Stallman, who arguesthat computer code controls and enables the actions of users, thus, for users to have trueautonomy, they must be able to examine, alter and redistribute the code. The issue sheseeks to explore is the extent to which this observation applies to governmental activitiesthat are embedded in computer code. By analysing the differences and implications ofopen and closed software code, she argues that the issues are much more complex thanthe simple notion that open code is good and closed code is not when considering theirimplications for effective democratic governance. Helen Margetts considers the ways inwhich digital government might be more or less transparent than pre-digital government,as well as the potential for digital means to overcome the barriers which she identifies. Thehigh level of specificity of these two papers merely scratches the surface of the relationshipbetween information technology and transparency, for the advent of technology not onlyprovides potential opportunities for upwards transparency, enabling citizens to obtainaccess to government information, but it also vastly enhances the potential for downwardstransparency, owing to the state’s technologically-enhanced capacities to glean and gather awealth of information about its citizens.

Christopher Hood concludes the volume by gathering together some of the principalthreads emerging from the collection, while adding observations of his own. He argues thatthey collectively indicate that there has been a growth in transparency laws, routines andprocedures, including access to government laws, audit and record-keeping requirements,but notes that several essays doubt whether these have generated greater levels of substantiveopenness in government. Although one of Hood’s aims was to account for the risingprominence of transparency as a nostrum of good governance, none of the volume’scontributors were primarily concerned with providing such explanations. Hood neverthelessidentifies three possibilities, drawing on interest group accounts, cultural explanations andfunctional accounts. Rather, most of the contributions focus on ‘‘what transparencyaffects’’—what impact the rise of transparency has had on the policies and practices of thosesubject to its demands, the quality and quantity of the information thereby provided and,more broadly, the achievement of the goal of greater openness. Although the implementationof transparency laws is conventionally accompanied by claims that it will enhance publictrust and create a new culture of openness in government, Hood observes that this claim isunproven, and probably not provable. Indeed, a number of the contributions suggest thatsuch measures may be futile, jeopardise other values, or even be perverse, reducing ratherthan enhancing citizens’ knowledge of government and its workings. Finally, he reflects onwhether we should value transparency, observing that Birkinshaw is alone in according itthe status of a human right, yet he also suggests that most would share Rousseau’s viewthat a lack of concealment is an intrinsic social value, even if it does not make us richer,avoid conflict or achieve other goals. For Hood, the difficult question is to identify exactlywhat are the trade-offs between transparency and other values, or qualities that distinguishit from its more negative forms. He identifies three main values against which transparencymust be traded off arising from the essays: appropriateness of judgments or treatments aboutspecific cases in conditions of risk or uncertainty (for example, a surgeon who declines riskycases if surgeons’ mortality records are published); the ability to conduct mutually beneficialnegotiations effectively without deadlock; and ‘‘system maintenance’’ in political science inconditions when no ambiguity about goals or about who benefits and who pays for whatcan be admitted. Hood is attracted by the view that transparency is good in some conditions,but negative in others, leading him to suggest that culture is the catalyst that determinesthe social effects of formal transparency measures, especially in conditions where the valuesinherent in transparency measures have not pervaded the institutions that have such measuresapplied to them. Several of the essays also see blame-conscious cultures as especially likely toturn transparency measures into standard operating routines that in practice violate the loftyideals of transparency theorists, particularly the tendency for (i) box ticking routines thatcreate frustration and alienation, or (ii) blame avoidance concerns dominating institutionalresponses that can produce paradoxical and dysfunctional or tokenistic responses by leavingaudit trails, but fail to fix the substantive problem or the avoidance of record keeping toensure collective amnesia.

For public lawyers, this volume is of considerable value in breathing life into a principlewhich they generally accord uncritical allegiance and which many narrowly equate withaccess to government information regimes. It offers several important lessons. First, it clearly


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demonstrates that the principle of transparency is invoked in a broad and diverse range ofcontemporary governance contexts well beyond the confines of freedom of informationlegislation. Secondly, its implementation in practice is anything but straightforward, witha number of contributions revealing how institutional action may serve to side-step, avoidand even overwhelm the intentions underpinning transparency measures. As Hood observesin his conclusion, prudence seems to justify a strong element of ‘‘practical scepticism’’ aboutthe way transparency measures work on the ground. Thirdly, the esteem with which publiclawyers typically view transparency, grandly proclaiming it as a lofty ideal, may be misplaced.As a general principle, quite apart from problems arising from its practical operation, severalof the contributions indicate that while sunlight may be the best disinfectant, excessive rayscan cause harm. Contrary to Bentham’s well-known adage, sometimes the more strictlywe are watched, the worse we are likely to behave. Evidence from economics and gametheory suggests that transparency might in some circumstances undermine good decision-making. Public lawyers might be provoked into reconsidering their criticisms of the courts’continuing refusal to recognise that public authorities are subject to a general duty to givereasons, or for judicial willingness to accede to claims for confidentiality in aid of the publicinterest.

By drawing attention to the ways in which transparency might be counter-productivein certain circumstances, several contributors grapple directly with the ways in whichtransparency may conflict with other valuable goods, including good faith and freedom innegotiations, candour in collective decision-making and efficiency. Yet there is, surprisingly,almost no discussion of the right to privacy and the ways in which it may come intoconflict with transparency’s demands. Given that there has been a significant growth inrights consciousness in contemporary culture (including growing recognition of a right toprivacy) that has broadly coincided with the ‘‘rise and rise’’ of transparency which thevolume emphasises, this is a significant gap. Perhaps this is attributable to the fact thata preponderance of the contributions adopt perspectives from various standpoints withinpolitical studies, with only one legal scholar contributing. Christopher Hood himself notesin his concluding comments that few of the essays have considered the ‘‘ability of citizensto know about each other’s identity’’. In this respect, there is considerable scope for legalscholars to enrich discussions within political studies, just as this volume illuminates howlegal scholars might learn much from their colleagues in political studies and related socialscientific disciplines. Accordingly, although the volume largely succeeds in achieving itsstated aim of collecting and comparing ideas about transparency across different academicdisciplines, the contributions do not generate much in the way of a substantive dialoguebetween disciplinary perspectives. This is not so much a fault on behalf of the editorsor contributors, but serves to highlight the challenges of weaving together insights fromdifferent disciplines that can successfully provide an integrated interdisciplinary perspective.

Karen Yeung*

New Dimensions in Privacy Law—International and ComparativePerspectives. Edited by Andrew T. Kenyon and Megan Richardson. CambridgeUniversity Press, Cambridge, 2006. 269 pp + Bibliography + Indices. Hb. £60.00.

This edited collection of essays on developments in the protection of privacy interests at thelevels of national and international law is the product of a series of public seminars hosted bythe Centre for Media and Communications Law at the University of Melbourne. A numberof jurisdictions are represented by the contributors to this volume, including England,the United States, Australia, and New Zealand. The discussion also ranges across thesupranational forms of privacy protection to be found under the European Convention onHuman Rights, EU data protection and privacy and electronic communications directives,as well as the Privacy Framework agreed by countries belonging to APEC (Asia-PacificEconomic Co-operation). There is a preponderance of essays devoted to developmentsin common law jurisdictions. Of the nine substantive chapters, three (those contributed

* King’s College, London.


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by Professors Barendt, Phillipson and Wacks) focus to a large degree on developments inEnglish law in the era of Campbell and Von Hannover.

One of the themes to emerge in the early chapters by Professors Barendt and Murchison(the sole US academic represented in this collection) is that freedom of expression andprivacy should not be conceived of as necessarily or invariably set in an antagonisticrelationship. We need a guarantee of a measure of privacy in our communications withfriends, families and colleagues if we are to develop and mature as individuals. Moreover,as Eric Barendt usefully reminds us, the media too invoke the idea of privacy when theyresist actions to disclose the identity of their sources. There are strong reasons connected toinformed self-governance which underpin this stance.

Professor Murchison takes as his focus the extent of protection offered by the US tort ofpublic disclosure of private facts, noting the historical weakness of the tort when pitchedagainst the First Amendment and freedom of the press. As he notes, public disclosureactions have tended to fail in the past when the plaintiff has been unable to demonstratethat disclosure lacked any relevance to matters of public concern.5 Murchison argues that arevision of judicial attitudes may however be in progress, citing the Supreme Court decisionin Bartnicki v Vopper.6 The ruling concerned the broadcast on public radio in Pennsylvaniaof a private mobile phone conversation between the chief union negotiator and a teachers’union president which occurred during contentious collective bargaining discussions. Inthe conversation it is suggested that the union should consider ‘‘blow[ing] off . . . frontporches’’ and ‘‘do[ing] some work on some of these guys’’. The conversation had beenintercepted by a third party and a taped copy supplied to a radio journalist, Vopper, whoaired the tape on his programme. The issue for the Supreme Court was whether unionofficials were able to recover damages under federal and state laws protecting the privacy ofelectronic communications. In a 6:3 ruling, the Court found that the statutory protectionviolated the journalist’s First Amendment right to disseminate information on matters thatare relevant to informed self-government. In giving his majority opinion, Justice Stevens didhowever allude to the fact that private communications could enjoy a measure of privacyprotection without falling foul of the First Amendment. However, on the facts before theCourt, the public interest in learning of the details of the conversation was a weighty oneand prevailed over this privacy interest. For his part, Murchison hails Bartnicki for its refusalto accord a presumptive privilege for media disclosure of private conversations and woulddoubtless welcome further inroads into the media’s First Amendment dissemination rights.Nonetheless, it is possible to read too much privacy protection into the majority’s ruling. Itis not clear postBartnicki under which precise circumstances involving public figures in thefuture (or even private persons who are thrust into the public domain) a media organisationmight be injuncted and/or subject to a successful damages action on privacy grounds.Suppose for the sake of argument that the union officials had not canvassed the possibilityof using violence against their opponents, it must still be doubted whether the Court wouldhave altered its stance to favour the petitioners’ claim. The First Amendment’s commitmentto informed self-government and a correspondingly broad conception of the public interestmake it unlikely that the media’s free speech claims would yield to privacy concerns soreadily, even where this does concededly result in some unknowable quantity of privatespeech being chilled.

Across the Atlantic—and in the absence of a similarly robust degree of constitutionalprotection for media expression—individuals seeking to prevent the disclosure of privateinformation are generally on firmer legal ground. This enhanced level of privacy protectionis welcomed by a number of contributors to this collection. It will be recalled that Campbellv MGN confirmed the seismic shift in this area by finally putting to rest the requirementfrom Coco v A.N. Clark of a prior confidential relationship between confider and confidant.Attention would henceforth be directed to the issue of whether the recipient of informationcould reasonably be expected to know that the information was confidential or ‘‘obviouslyprivate’’. Where this requirement is met (and it may not be entirely clear what does countas ‘‘private’’ information), the privacy claim is then to be balanced against the claim tofreedom of expression. Neither claim is to enjoy a presumptive priority over the other.

5 See, e.g. Gilbert v Medical Economics Co 665 F. 2d 3905 (10th Cir. 1981).6 532 U.S. 514 (2001).


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Instead, the particulars of each claim must be closely considered. Thus, the weakness of thesubstance of media claims to freedom of expression in cases such as Von Hannover, A v B &C as well as Campbell meant that the opposing privacy claims were more likely to emergetriumphant. Of course, ‘‘balancing’’ the particular features in any given case in turn givesrise to a host of new thorny issues. There is a good level of analysis of these developmentsacross several chapters in the book and some of the problematic issues they provoke.

Nonetheless, the book lacks a counterweight chapter or two that addresses systematicallyand in principled terms from a media freedom perspective the problematic features of casessuch as Douglas v Hello, Campbell and Von Hannover—one that takes in the unedifying‘‘commodification’’ of privacy in Douglas and considers the overarching constitutionaldifficulties for liberal democracies posed by a form of judicial activism that sets out whatis and is not ‘‘acceptable journalism’’, drawing in the process upon some very open-endednotions of autonomy and dignity. Kenneth Keith’s chapter, for example, (‘‘Privacy and theConstitution’’) fails to address—other than in passing—the legitimacy of judicial creativityin this area. Raymond Wacks, in a chapter that reminds us why the English judges havebeen unwilling to create a fully fledged privacy tort, manages merely to devote twoparagraphs to this critical issue before concluding that ‘‘[t]hough sometimes contentious,certain fundamental rights are best kept off-limits to legislators, or, at least, beyond the reachof normal political machinations’’. From a public law perspective, the absence of a seriousand sustained examination of the democratic legitimacy of judicially-extended privacy tortsis disappointing.

The normative preference for greater privacy protection that is apparent in parts ofthis collection is also manifested in places by an uneven analysis of the substance ofexpression/privacy claims. Specifically, whilst the paucity of certain freedom of expressionarguments sometimes made by the media are rightly exposed (a number of authors agreethat expression claims need to be analysed within a tiered approach to speech types inwhich political speech is given the greatest protection and gossip about celebrities the least),there is no equivalent scrutiny of the merits and weight of opposing individual privacyclaims. Take the category of medical information, for example. It is one thing to confera high degree of protection upon particularly intimate medical information (such as thatrelating to mental health or sexual matters), it would seem quite another to attach the sameimportance or weighting to less obviously intimate medical details such as the fact that theclaimant has a cold or has had an operation to remove an in-growing toenail. A similarrange of more-to-less obviously weighty private financial information can also be envisaged.It is one thing to reveal the claimant’s salary and bonus details, quite another to state thatlast week the claimant spent £10 on a bottle of wine in his local supermarket. It is notimmediately obvious that each privacy infringement should be accorded an equal ‘‘weight’’in any balancing exercise. Furthermore, it must be doubted whether private information thatactually shows the claimant in a favourable light (such as taking sensible measures to addressa personal difficulty as per Naomi Campbell) ought to be considered as having the sameweight as a much less favourable revelation in any balancing exercise. These complexitieswould have been worthy of closer analysis

The majority in Campbell were, with the benefit of hindsight, too ready to dictate to thenewspaper the form and content of the journalistic package to be presented to newspaperreaders. As Lord Nicholls for the minority pointed out, once it was conceded that MsCampbell’s lies had put the issue of her drug addiction and treatment squarely into thepublic domain, to tell the media that it could not report her attendance at a meeting ofNarcotics Anonymous was decidedly odd. It was equivalent to preventing the media fromrevealing the fact that a person whom the public already knew had broken his leg, hadhad the affected limb put in plaster. The ‘‘unremarkable and inconsequential nature’’ ofthe additional information did not seem to engage Art.8 anew. Thus, for Lord Nichollsthis extra information did not overcome the first hurdle of constituting obviously privateinformation. The case for permitting disclosure of the details of Campbell’s treatment couldindependently be said to be strengthened by the legitimate interest of the newspaper inplacing a credible story before its readers. The more the published account was able toaffirm hard details of the treatment, the greater its credibility. This lack of latitude affordedto the Mirror on the matter of how it was to put its readers straight about Ms Campbell’slies is arguably one of the most disquieting features of the majority’s reasoning. To thesetroublesome features of domestic developments we must also add the spectre of the EuropeanCourt of Human Rights’ ruling in Von Hannover. The simplistic dichotomy advanced by


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the Strasbourg Court between public and private figures denies the possibility of therebeing a legitimate reason for the public to learn details pertaining to someone who is notperforming a ‘‘public function’’. This failure to appreciate that the lives of private figurescan become of genuine interest to the public (as when the facts about such persons revealsomething about the working of public institutions/officials and thereby add something toinformed scrutiny and accountability) is rightly criticised by Phillipson.

Other chapters concern themselves with the potential for abuse of privacy interests inthe commercial sphere. Graham Greenleaf’s chapter on the APEC Privacy Framework,for example, takes as its focus the international agreement which spans four continentsand one-third of the world’s population. He fears that the low and incomplete standardscontained in the Privacy Framework may come to be accepted a ceiling rather than abase of privacy protection that compares unfavourably with EU standards and may haveramifications for the sharing of personal data across frontiers.

David Lindsay and Sam Ricketson’s chapter on copyright infringement in digital mediaanalyses the impact of digital rights management (DRM) technologies that allow copyrightowners to ‘‘lock-up’’ copyright materials and the threat that such technologies may pose tothe privacy of users. DRM appears to facilitate the identification of end users of copyrightedmaterial, and can allow the gathering of data about the user’s identity and access to suchmaterial. The analysis here is partly historical, looking at the how civil and common lawsystems have traditionally protected privacy interests and how each is adapting to the eraof digital rights management. The authors contrast ‘‘rights-based’’ and utilitarian ‘‘interests-based’’ approaches to the regulation of copyright and privacy. In the former, legal ruleswould protect the autonomy and dignity of both the creators of copyright materials andalso users by imposing limits on the market. Under a utilitarian or interests-based approachthe legitimacy of legal intervention is assessed according to whether the intervention willpromote a more efficient market in copyright material. At present the authors conclude thatit is simply too early in the life of DRM technology to know from either a ‘‘rights-based’’or ‘‘interests-based’’ perspective how the system is working.

Overall, for scholars working in comparative media law, this collection will prove tobe a valuable resource. Notwithstanding earlier criticisms concerning a lack of balance, theeditors have put together an interesting and thought-provoking set of essays by some ofthe leading authorities in privacy law in both its public and private law dimensions across anumber of jurisdictions.

Ian Cram*

* University of Leeds.


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