Theory Readings Notes

Theory

Constitutional review under conventional popular sovereignty model

• Democracy = a means of managing power relations to minimise domination

  • Does so by governance by consent of people — collective self-legislation — people author laws and then live under them

• BUT laws are in fact made by majority or their representatives

  • So minority require separation of powers to safeguard their interests

• That division of power is done according to constitution enacted by the people — even a self-interested majority recognise possibility that will become minority & so enact checks on power

  • BUT implies that the ‘people’ have the right to bind themselves in perpetuity — as judges striking down legislation are not acting by authority conferred by the current people — and that would surely require originalist interpretations of the Constitution

• By jurisdiction

  • UK — no written constitution or popular motion conferring such power on the courts

    • Except perhaps for distributive theory that judicial power originated in the King

  • France — Written constitution provides little support and courts have gone far beyond it

  • EU — Written constitution not enacted by popular vote but by negotiations between States

Legal (Craig) <> Political (Tomkins) Constitutionalism

Difference: How to hold the executive to account

• Political constitutionalism — political & institutional accountability — by parliamentarians, electors, political debate, questioning, investigation & scrutiny

  • Transparency, democracy, participation & representation, deliberation through committees, consultation to obtain evidence of impact — better suited to proportionality analysis

  • criticism of “juristocracy” — but not inconsistent with desire for substantive law that respects human rights & civil liberties

• Legal constitutionalism — accountability by judicial application of law

  • Justice, protection of minorities, human rights

Role of courts under political constitutionalism

• Uses arguments against strong JR to undermine JR of administrative acts — BUT —

  • To eliminate judicial evaluative exercises would undermine all adjudication in public & private law — interpretation of terms such as “inhumane & degrading treatment” is laden with value-judgments

  • Democratic deficit — executive power is delegated to civil servants who possess significant discretions, and deference is exercised by courts to extent necessary

  • Reduction in JR = reduction in individual redress in the particular case, even if gov can be effectively controlled through other means

    • Other redress mechanisms exist but eg to elevate ombudsman to same power as courts would create same objections

  • Would require exit from ECHR & HRA

• Rights & JR — Accepts judicially enforceable substantive rights only where

  • sufficiently narrowly defined & absolute — eg ban on torture

    • Determination of meaning/content of a legal term rather than balancing policy matters

  • process issues (eg fair trial rights)

    • Judges better trained to deal with procedural fairness — extends by analogy to consultation processes

  • <> qualified evaluative methods that require proportionality are problematic — really just political problems dressed up as judicial solutions (eg freedom of speech)

• Administrative powers — conferred by so must be limited by law: Entick v Carrington —

  • Should not engage in rationality or proportionality review

    • But divide between purpose/relevancy & rationality/proportionality is unclear — eg dismissal of teacher for hair colour is irrational <> hair colour is not relevant consideration

    • IE just depends how a case is pleaded

  • BUT Royal Prerogative — some executive power is not statutory — said to stem from the Constitution but in reality is a common law power given to the executive

    • <> in Australia, where constitution is written

  • Permits courts keeping public bodies within their power — but in what sense? — links into ultra vires debate

    • Narrow, pre-Anisminic JE (in different forms)

    • Misuse of power

    • Various principles of legality, incl LEs, equality, respect for rights

  • Permits courts to resolve ambiguity in power in favour of liberty — principle of legality

    • Craig — Not clear why this is so, if JR based on rights is impermissible

• Make findings based on evidence

  • Some evaluative judgments require evidence which is not usually before a court — judicial notice is a weak tool: eg ruling in Belmarsh that 9/11 constituted ‘public emergency’ (but striking down derogation from rights on basis that not ‘strictly necessary), made without any evidence

  • Corner House — HL weighing public interest in continuing investigation of bribery <> public interest in avoiding Saudi threat of ceasing cooperation on intelligence, risking lives of citizens — no attempt to ascertain the level of such a threat held decision of prosecutor to abandon investigation was lawful

Role of Parliament in Political Constitution

• Take care in conferring powers on executive

• Adopt thorough scrutiny measures, consultation, etc

• Courts should refer questions back to parliament — as under HRA — essentially Courts another layer in the QA process

  • Should extend HRA incompatibility declarations to findings as to scope of government powers — ie where not necessary as under Terrorism legislation, or where prerogative executive power too broad

UK

The need for justification

• All other exercises of power (legislative & executive) stem from a higher authority <> High Court does not, provided we reject the declaratory theory of common law

  • IE courts have the power they say they have: Sir John Laws

    • Necessary outcome of system where one institution has to be charged with determining the limits of power

  • BUT courts are restrained by convention, precedent, need to reason normatively & wording of constitution where applicable, opportunity to reason inter partes, etc

    • And relies on conception of power as factual in...

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