Public Law: Spring 2008

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10/1/08
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The ombudsman and paths to justice: a just alternative or just

an alternative?
Ann Abraham
Against a written constitution
N.W. Barber
Public Law
Analysis
Public Law
Spring 2008
The consistency of Dicey: a reply to McLean and Macmillan

Vernon Bogdanor
Gordon Browns new constitutional settlement
Andrew Le Sueur
Book Reviews
Gavin Drewry, Louis Blom-Cooper and Charles Blake: The Court
of Appeal.
Colin Turpin and Adam Tomkins: British Government and the
Constitution: Text and Materials.
Spring 2008
The Privy Council overrules itselfagain!

Derek OBrien
Joseph M. Jacob: Civil Justice in the Age of Human Rights.
Analysis
Articles
Enacting a British Constitution: Some Problems
Vernon Bogdanor and Stefan Vogenauer
Public-Private Intersection: Comparing Fiduciary Conflict
Doctrine and Bias
Matthew Conaglen
Christopher Hood and David Heald: TransparencyThe Key to Better

Governance? Proceedings of the British Academy, Volume 135.
The Courts and Politics after the Human Rights Act: A Comment
Tom Hickman
Andrew T. Kenyon and Megan Richardson: New Dimensions in Privacy

LawInternational and Comparative Perspectives.
The Pervasiveness of Polycentricity

Jeff A. King
1202
Constitutionalism and Legislation in Special Educational Needs

Law: An Anglo-Irish Perspective
Conor OMahony
Current Survey
International Survey
Government and Politics Journals
Book Reviews
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Public Law
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Public Law
Spring 2008
Analysis
The ombudsman and paths to justice: a just alternative or just an
alternative?
Ann Abraham
N.W. Barber
The consistency of Dicey: a reply to McLean and Macmillan
Vernon Bogdanor
Andrew Le Sueur
Derek OBrien
Articles
Enacting a British Constitution: Some Problems
Vernon Bogdanor and Stefan Vogenauer
Public-Private Intersection: Comparing Fiduciary Conflict Doctrine
and Bias
Matthew Conaglen
The Courts and Politics after the Human Rights Act: A Comment
Tom Hickman
Jeff A. King
Constitutionalism and Legislation in Special Educational Needs
Law: An Anglo-Irish Perspective
Conor OMahony
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Analysis 1
Analysis
The ombudsman and paths to justice: a just alternative

or just an alternative?
Administrative law; Human rights; Ombudsmen; Public services
At a recent ombudsman conference at Warwick University one of the guest
speakers, the Ombudsman for Austria, provoked a good deal of amusement
by describing the success of a reality TV show called, The Ombudsman:
top stories, hot topics. Hard to believe, maybe, but this hugely popular
programme draws its content from the human-interest material that passes
across the Austrian Ombudsmans desk every day of the week and regularly
attracts an audience of up to a third of the population.1
That the Austrian Ombudsman struggled at first to understand his audiences
reactionat first disbelief, followed by some mirthreflects in part, I suspect,
the difference in outlook between our respective jurisdictions: in Austria (and
much of Europe, for that matter), the ombudsman idea is so central to local
and national administrative law that it is the obvious place to turn for a social
snapshot or a good story; in the English-speaking and common law world, the
idea of attracting a similarly appreciative audience is at present, well, probably
laughable.
I am put in mind too of a recent exchange, at a conference of European
ombudsmen, with the Norwegian Ombudsman in which he gently chided
the United Kingdom for allowing its judges to have the last word on whether
an ombudsman has come to the right conclusion. This he regards as a
jurisprudential outrage. When asked whether in that case he considered the
ombudsman to be above the law, he had no hesitation in replying, What do
you mean? The ombudsman is the law.
I do not intend going quite as far as that today, but I do want to stake a
claim for the Parliamentary and Health Service Ombudsman (PHSO)and
for public sector ombudsmen more generallyas an integral part of the
administrative justice scene in this country, in fact as a coherent system of
justice in its own right.2 I want as well to identify some of the distinctive
1 For details of the Austrian Ombudsmans work, see http://www.volksanw.gv.at [accessed November
15, 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
Public Law
features of that system, of the ombudsman approach, the things that make
it significantly different from the conventional common law way of going
about these things. This is justice, but not necessarily as we know it. In
doing that, I want to suggest, however, that the ombudsman system, although
different, is complementary to the courts and tribunals on the one hand and to
negotiated 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 administrative
justice system, to what extent do the other parts (the courts and tribunals, for
example) repay the compliment by recognising it as such; and if this really is
a system of justice, where in the Ministry of Justice is the overview of that
part of the justice system and the ownership of developments in ombudsman
policy to be found?
The ombudsman as a system of justice
But lets start with a brief survey of ombudsman practice. Just what sort of
things do ombudsmen get up to? What sort of complaints do they investigate
and what sort of remedies can they offer?
Between them, public sector ombudsmen handle complaints about all
the main public services delivered in England, Northern Ireland, Scotland
and Wales. In 2006/07 the PHSO dealt with over 14,000 inquiries; and
completed over 2,500 investigations. Over 1,100 of the cases reported
on arose in the health sector (the Healthcare Commission, NHS Hospital
Trusts, Primary Care Trusts and primary care providers accounting for the
majority). The balance related to a wide range of government departments
and agencies, with the biggest repeat customers being HM Revenue and
Customs (especially in respect of tax credits), Jobcentre Plus, the Child
Support Agency, the Pension Service, and the Immigration and Nationality
Directorate (IND), as it then was. In 62 per cent of cases investigated, the
Ombudsman upheld the complaint in full or in part. In every one of the
cases reported on in 2006/07, the parties complied with the Ombudsmans
recommendations.
These quantitative figures disclose substantial reach and scope. The remedies
achieved 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 fee
unnecessarily incurred; compensation from Jobcentre Plus for 18,000 arrears
of income support, late payment of benefit, lost entitlement to free school
meals and help with school uniforms; remittance by the Revenue of an
overpayment of 7,500; reimbursement by the Disability and Carers Service
of 9,500 to cover lost disability allowance plus interest over a four year
period.
2004, Cm.6243. See more generally, M. Seneviratne, Ombudsmen: Public Services and Administrative
Justice (Butterworths, 2002).
Analysis 3
In others, it is non-pecuniary: a trust-wide audit of clinical records and

the institution of training in the handling of MRSA positive patients; the
review of a decision by a Primary Care Trust to refuse funding of continuing
care; improvement of supervision, ward staffing levels and skill mix in the
management of patients with dementia and poor communication; provision of
weekend senior medical cover and better transfer procedures within a Primary
Care Trust.
Levels of satisfaction with the PHSOs work are high (especially when it is
remembered that many complainants walk away empty handed): in our most
recent customer satisfaction survey 63 per cent of complainants were satisfied
or very satisfied with the way in which their complaint was handled; and
51 per cent spoke highly and positively of the Ombudsman and the service
provided, with a large majority considering the Ombudsman to be responsive,
accessible, sympathetic and fair.
This snapshot of PHSO work indicates good levels of business, diversity
of remedy and client satisfaction. Compliance rates with the PHSOs
recommendations are very high, and almost certainly far higher than compliance
with judgments imposed by the civil courts. Interestingly, compliance with our
recommendations has gone up this yearfrom 99 per cent in 2005/06 to 100
per cent in 2006/07. There is no indication that the inability to make binding
recommendations impairs the PHSOs ability to deliver substantive justice.
Moreover, it is apparent from the examples cited that complainants include
in 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) deserves
serious consideration as a significant path to justice for very many aggrieved
and 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 Woolfs reforms, there is more than one way to
skin the judicial cat, or to mix my metaphors, in a world of judicial horses
for courses there is certainly more than one way (if I can put it this way) of
being taken for a ride.
The ombudsman way is not that of the courts and tribunals, nor is it for the
most part the way of mediation or other negotiated ADR. An ombudsman is an
alternative, but it is an alternative forum for making decisions not an alternative
to decision-making altogether. The distinction between the ombudsman and
mediation is underlined by a recent change in the law. The Regulatory
Reform (Collaboration etc. between Ombudsmen) Order 20074 is, as its
title suggests, primarily concerned with increasing the scope for collaboration
between the PHSO and the Local Government Ombudsman, for example, by
sharing 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 (Hart
Publishing, 1999).
4 SI 2007/1889.
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 the
conduct of an investigation. There may well be cases where mediation is
especially appropriate in enabling the parties to explore their differences with a
trained facilitator, achieve insight and empowerment, and devise for themselves
a way forward. Other domestic ombudsman schemes, such as the Housing
Ombudsman Service, have made productive use of such arrangements for some
time.
The availability of mediation might also be of assistance to those engaged
in judicial review proceedings and referral by the court to mediation in such
circumstances would no doubt be appropriate. It should not be thought,
however, that the ombudsman is itself an agent of mediation. Mediation is
not a decision-making process. Crucially, it lacks the adjudicatory function
that is exercised by an ombudsman. In that regard, the ombudsman shares
an important judicial characteristic with the courts and tribunals. What
distinguishes the ombudsman from the courts and tribunals is not, then,
the lack of an adjudicatory function but rather the ability to adjudicate in
a different way. As Bean J. noted recently in his judgment in the judicial
review of the governments refusal to accept my finding of maladministration
in respect of official information provided about occupational pension
schemes, the ombudsman has very wide discretion; a public adversarial
hearing is not the only fair way of finding facts; and it is not the way
Parliament requires either of the Parliamentary or the Local Government
Ombudsmen.5
In other words, although ombudsman schemes may have plenty in common
with the courts and tribunals, they are far from perfect clones of them. Of
more interest, in fact, are the differences. Where the law, at least in this
jurisdiction, has traditionally been characterised by formality, the observance
of rigorous rules of evidence, adversarial process and the binding authority
of precedent, ombudsman practice by contrast has always prized its relative
informality, its common-sense approach to evidence, its inquisitorial process
and its capacity to do justice in the individual case, unfettered by the burden
of binding precedent. As one commentator put it, If the law is cold and rigid
in its adherence to universal principle, an ombudsman is warm and supple in
his or her response to the particular.6
It is of course precisely this sense of otherness that invests ombudsmen
schemes with their attraction for potential litigants. Like other alternatives
to the courts and tribunals, whether mediation, conciliation or arbitration,
ombudsmen rightly take pride in the relative speed, simplicity and low
cost of the individuated and essentially inquisitorial form of justice that
they administer. They have relative freedom in deciding for themselves the
best way to get to the real heart of a particular dispute, picking out the
key 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. OBrien, Ombudsmen and the courts: time for dialogue, The Ombudsman, December 2002.
Analysis 5
the parties. For those for whom the laws cost, delay and inflexibility
are active deterrents, the softer, gentler ombudsman way is naturally
enticing. It is, perhaps, a bit like (but only a bit!) the difference between
complementary and conventional medicine, between acupuncture and the
surgical knife.
And there is a bonus too. In order to remedy any mischief that is revealed
by the investigation, an ombudsman will generally have at his or her disposal
a range of devices that will not merely provide for justice between the
individual parties to the dispute but, crucially, that will also facilitate systemic
change. In other words, an ombudsman investigation has the potential to
transcend the inherent individualism of conventional litigation. This quality
is, for example, apparent in my own offices ability, provided by statute, to
produce special reports where necessary to root out systemic problems and
exercise a somewhat more systematic check on progress.7
It is tempting to suggest then that there is a considerable degree of rivalry
between ombudsman practice and the law, or at best that the two are related in
much the same way as chalk and cheese, by a superficial similarity that dissolves
on closer inspection into irremediable and disappointing difference. Yet the
aspirations of the courts and of ombudsmen are now, arguably, less than ever
before, polar opposites. Since Lord Woolfs reforms of the civil justice system
and the more recent reorganisation of the tribunal system, the emphasis in both
courts and tribunals is upon making each respective system work for those who
use it, and upon finding procedures that offer genuine access, authoritative
decisions and meaningful remedies. Underpinning these reforms is the horses
for courses philosophy I mentioned earlier, the recognition that the judicial
sledgehammer is hardly the appropriate tool for cracking every contested nut
in town.
Seen in that reformist light, the potential rivalry of ombudsmen and the
courts evaporates into potential partnership, with the ombudsman system a
mature and legitimate stable companion of the other two thoroughbreds.
Indeed in 2002 the Court of Appeal lent credence to this consensual
account, although, as explained above, it would be a mistake to look to
the ombudsman for mediation in the first instance, notwithstanding the new
Order which permits the Ombudsman to deploy external mediation services
where appropriate.8
On such a view, there is clearly a place for early referral of disputes
by the parties, or indeed by the courts and tribunals themselves, to an
ombudsman. As things stand, the Ombudsman is barred from investigating
any action in respect of which the person aggrieved has or had a remedy
by way of proceedings in any court of law, subject to the proviso that the
Commissioner [Ombudsman] may conduct an investigation notwithstanding
that the person aggrieved has or had such a right or remedy if satisfied that
in 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 the
Ombudsman [2005] P.L. 740.
8 Cowl v Plymouth City Council [2001] EWCA Civ 1935; [2002] 1 W.L.R. 803.
Public Law
have resorted to it.9 In practice, that proviso creates a necessary measure

of discretion, at least enabling the ombudsman to accept for investigation
any case where the relevant statutory appeal process or court proceedings
simply 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 for
clash with the courts jurisdiction. It was in the spirit of further clarification
and of removing superficial impediments to the exercise of this discretion
that Lord Newton of Braintree, the Chairman of the Council on tribunals,
moved an amendment to the Tribunals, Courts and Enforcement Bill deleting
the presumption created by the existing legislation that the ombudsman
will only exceptionally investigate cases that might otherwise have gone
to court. As Lord Newton reminded the House of Lords, Lord Woolf
recommended in 1996 that the relationship between the courts and ombudsmen
should be broadened, enabling issues to be referred by ombudsmen to
the courts and by courts to the ombudsmen with the consent of those
involved.
Legislative clarification would certainly have been welcome and no doubt
have reinforced co-operation between the courts and ombudsmen. But let
me give an example of how the courts and ombudsmen can already bring
their distinctive contributions to bear on the same issues in an even broader
context. In my role as Health Service Ombudsman for England I have done
a lot of work on continuing care (i.e. funding by the NHS of long-term care
for elderly and disabled people). This illustrates very well the respective roles
of ombudsmen and the courtsand 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 of
Coughlan.11 The Court considered the issue of whether nursing care for a
chronically ill patient might lawfully be provided by a local authority as a
social service (and thus be means tested) or whether it was required by law
to be provided free of charge by the NHS. The judgment was that whether
it was unlawful to transfer responsibility for the patients general nursing care
to the local authority depended, generally, on whether the nursing services
were:
merely incidental or ancillary to the provision of accommodation

which a local authority is under a duty to provide;
of a nature which an authority whose primary responsibility is to

provide social services could in fact be expected to provide.
That case determined the lawand determined the remedy appropriate in that
case. But the Ombudsman continued to receive complaints about how the law
was being applied by a number of health authorities.
In February 2003 I reported to Parliament on the outcome of the
investigations of complaints about decisions of four different NHS Trusts in
9
Parliamentary Commissioner Act 1967 s.5(2).

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.
10
Analysis 7
relation to patients eligibility for continuing care funding.12 I concluded that,

since 1996both before and after the Coughlan judgmentthe Department
of Health had not provided the necessary guidance to NHS bodies to provide
the secure foundation needed to enable a fair and transparent system of
eligibility across the country; and that what guidance there was had been
misinterpreted and misapplied by some health authorities in developing their
own eligibility criteria, causing injustice and hardship to people in the cases I
investigated. As a result of that report, health authorities carried out over 12,000
retrospective reviews. And the Department of Health has estimated that around
180 million has been paid in retrospective payments to peopleand their
familieswho had previously been denied funding. So the courts determined
the lawand delivered the remedy in the individual case; the Ombudsman
followed throughand delivered the remedy to others who had suffered
injustice 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 in
their own right, albeit one that is different from, but complementary to, the
courts and tribunals. Where then does that ombudsman system sit in relation
to the rest of the administrative justice system? Let me answer that question by
looking briefly at three distinct but related issues: standard-setting in the public
sector; human rights and the reform of public services; and the vexed question
of public law remedies.
First of all, then, standard-setting. Ombudsmen are not regulators and
should not aspire to be so. They should though be seen as the potential
setters and promoters of principles of good practice rather than the mere
enforcer of established rules, an active agency in shaping the future behaviour
of organisations rather than the passive adjudicator of individual disputes.
A case in point is my own offices recent publication of its Principles of
Good Administration, which are an attempt to be open and clear with both
complainants and public bodies about the sorts of behaviour we expect
when public bodies deliver public services, and the tests my office applies in
deciding whether maladministration and service failure have occurred.13 By
approaching this issue positively, we have in a sense turned the traditional
ombudsman pre-occupation with maladministration on its head: instead of
looking retrospectively for instances of bad administration and performance,
we are looking prospectively and supportively for good things, for prevention
and 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 rights
principles, 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).
Public Law
goes with it (red tape, compensation culture, political correctness gone

mad, terrorists charter, etc.).14 Where can we look for the remedy?
The Department for Constitutional Affairs, as it then was, last year published
a review of the Human Rights Act that highlighted the continuing challenge
of embedding human rights in public consciousness and in public sector
practice.15 It has since followed up that review with new practical guidance
for public officials.16
But in a complementary way, the judgment of Lord Woolf and his fellow
Court of Appeal judges a couple of years ago in the case of Anufrijeva
highlighted the possibilities for extra-legal adjudication on human rights
issues by ombudsmen, and in doing so demonstrated how disproportionately
expensive 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 rights
legislation already rests in the first instance in the hands of an ombudsman, and
on a visit to the United Kingdom in 2005 the European Ombudsman
highlighted the need for greater co-operation between ombudsmen in
safeguarding the rights of citizens and taking a pro-active role in promoting
the rule of law and respect for human rights.
Even more recently, in Athens in April 2007, the Council of Europe invited
its Commissioner for Human Rights, Thomas Hammerberg, to seek greater
co-operation between his office, national ombudsman institutions and national
human rights institutions, partly as a response to the backlog of 90,000 cases
which currently chokes the European Court of Human Rights in Strasbourg,
but partly too in recognition of the need to repatriate human rights at
national and grass-roots level, to take human rights out of the court room and
into the administrative bloodstream and popular consciousness.19
This is a challenge that public sector ombudsmen already meet, albeit
not always in explicit human rights terms. It would, though, be virtually
impossible for the Local Government Ombudsman to investigate disputes
about social housing provision, social services, education admissions and
exclusions without addressing issues of human dignity and using a measure
of proportionality for adjudicating between competing interests. The Prisons
14 On the crisis of legalism facing human rights, see C. Gearty, Can human rights survive? The
Hamlyn Lectures 2005 (Cambridge University Press, 2006), Ch.3.
15 Department for Constitutional Affairs, Review of the Implementation of the Human Rights Act, July
2006. 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 livesA 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 1213, 2007. For background to these discussions, see the Commissioners website
at http://www.coe.int/t/commissioner [accessed November 15, 2007].
Analysis 9
and Probation Ombudsman, whose remit has been extended to cover deaths
in custody, is regularly confronting situations where the daily grievances of
prisoners and their families touch upon matters that go to the heart of what even
the most marginal can reasonably regard as the basic dignity afforded to their
humanity. In Northern Ireland the Police Service Ombudsman has established
herself as a significant force in the political culture, taking on investigations
that go to the heart of human decency, respect and tolerance. And my
own role of Parliamentary and Health Service Ombudsman inevitably entails
exploring aspects of public service delivery that have direct repercussions
for the dignity of individual citizens and their relationship with the State.
Human rights and ombudsmen are far from being strangers and might
yet play a larger role in delivering a human rights culture in the public
sector.
And thirdly, there is the matter of public law remedies, currently under
consideration by the Law Commission. My own office is also consulting on
a 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 for
financial loss but for softer disadvantage, such as injury to feelings. Within
the administrative justice system more widely, that underlying principle has
been slow to gain universal recognition and it may indeed be true that in
public law disputes its application is more complicated than in a private
law dispute between individuals. Nevertheless, the current differences in
approach to what might in essence be very similar causes of dispute cry
out for some form of rationalisation, in recognition of the need to ensure
that disputes find their way to the forum that is most likely to deliver the
right level of adjudication, the right remedy and the best prospects of future
prevention.
And that in short is an argument for integrating the ombudsman system
of justice more consciously and deliberately than at present into the wider
administrative justice system. There is little sign that any effective mechanisms
currently exist for ensuring that courts and tribunals refer suitable cases to
ombudsmen, although ombudsmen very often have it in their remit to
direct complainants to the courts and tribunals if competence lies in that
direction.
You will search in vain too for a branch of government that sees it as its job to
undertake 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 task
of 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 development
of new ombudsman schemes, that growth will surely undermine the sort of
potential outlined in this paper for ombudsmen to play an active part in the
delivery 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].
10
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it will very likely lead to the need for fundamental surgery of the sort dealt
recently to the tribunal world.21 A Leggat review of ombudsmen cannot be
that far away.
It is not too late to avoid that prospect. But the first step will be for
government, and others, to recognise the part that ombudsmen can, and
already do, play as a system of justice in their own right. That does not
require a prime time TV slot, but it does require greater understanding of the
ombudsman landscape and a recognition that ombudsmen in this country have
undoubtedly 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

Constitutional reform
No one enjoys radical change quite as much as constitutional lawyers.
When Gordon Brown hinted that one of the projects of his premiership
might include the production of a written constitution for the United
Kingdom, he could be sure of a warm welcome from within the faculties
of law and politics. The project is attractive to academics for many
reasons: there is the fun of debating abstruse constitutional issues, the
chance of bringing certainty to areas long characterised by vagueness, and,
perhaps, the opportunity to take a privileged role in the construction
of the constitutional foundations of the state. But before we let our
enthusiasm sweep us forwards, it is worth stepping back and considering
the dangers and difficulties such an enterprise would encounter. The
United Kingdom is in the unusual position of having an unwritten
constitution that works passably wellsufficiently well, at least, to allow
us to consider whether we want a new constitution. Most other states which
have produced a written constitution, in contrast, have had little choice:
when a territory gains independence or there is a radical break with the
old constitutional order, the creation of a written constitution is almost
unavoidable.
This paper attempts to flesh out some of the most important arguments
against introducing a written constitution for the United Kingdom. They
seek to show that the adoption of such a document would be a hazardous
affair; that it risks forcing through unpopular or concealed changes to the
constitution, that it risks shifting political power from democratic institutions
towards the judiciary, and that it risks unnecessarily provoking a destabilising
constitutional crisis. Having set out the objections to a written constitution,
the weight of the argument then shifts to its advocates: given that a written
constitution is not necessary, they must show that its benefits outweigh its
dangers.
The uncertain mixture of codification and reform
One of the many interesting ambiguities that has emerged from the debate so far
is the complicated interplay between codification and reform. Would the new
constitution 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 by
the wide possibilities it affords for radical change and improvement of the
constitution. Lord Hailshams assertion, pressed back in the late 1970s, that
a written constitution was needed to protect us against a stealthy communist
takeover now seems, perhaps, less compelling,1 but many other claims have
1
Lord Hailsham, The Dilemma of Democracy (London: Collins, 1978), pp.139140.
12
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been made for the possible virtues of a written constitution. Perhaps we

should have fixed-term parliaments,2 give judges the power to strike down
unconstitutional legislation,3 create an elected House of Lords,4 require the
Commons to vote before Britain goes to war5 ; perhaps we should adopt all of
these reforms, some of them, or a different set altogether. It is not the purpose
of this paper to argue for or against any of these measures. There are many
areas in which the British constitution would benefit from change, but the
question to be answered by advocates of a written constitution is why these
various changes should be treated as a package. Some constitutional reforms
do require wide systemic changes; they affect several areas of the constitution
at once. So, for example, the incorporation of the European Convention on
Human Rights necessitated changes to the role of the judiciary, to the practices
of Parliament, and, as well, altered the rights of the citizen. The Human
Rights Act 1998 was, of necessity, presented as a package of inter-connected
constitutional changes; the different parts of the Act were bound together
and depended on each other for their effectiveness. Whilst Parliament, when
considering the Bill, could make superficial changes to it, it could not alter
its fundamental elements without rejecting the whole thing. In contrast, there
is no obvious reason why a person who supported, say, an elected House
of Lords should also think that judges should be empowered to overturn
statutes, nor why an advocate of fixed-term parliaments should believe the
Commons should have the right to decide on military action. These various
mooted reforms are not connected, and, consequently, it is difficult to see
why they should be combined into one document. If, as is probable, there
were ultimately a referendum on the new constitution, the public would
be presented with a collection of unrelated changes which they could either
accept as a package or reject in its entirety. It is possible that widely unpopular
changes might then be passed on the back of other reforms. There might,
for instance, be a sizable majority strongly against fixed-term parliaments, but
they might reluctantly vote for the constitution because of their support for
an elected House of Lords. Tying unconnected changes together runs the risk
that unpopular reforms may be foisted by the drafters on the public, changes
that would not have occurred had each separate element been separately
debated.
If, on the other hand, the aim of a written constitution is simply to formalise
the existing constitution, the point of the enterprise is thrown into doubt.
There is little to be gained from such a project. Indeed, the fundamentally
vague line between description and evaluation ensures that it would never
be possible merely to describe the constitution. When constitutional lawyers
disagree, as they invariably do, about the content of the constitution, it is rare
that 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: Mansell
Publishing, 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 constitutional

material which is the subject-matter of the dispute, but each will have a
different understanding of the point of the rule under discussiona difference
which may be connected to a broader dispute about the proper aims and good
functioning of the constitution as a whole. Drafters who were mandated to
describe the constitution would, more or less knowingly, be compelled to
evaluate it, and shape it in light of those evaluations. A written constitution
that purported merely to restate the current position would inevitably contain
constitutional reform by stealth; hidden change effected without proper public
debate.
The shifting of power to the courts
Constitutional scholarship often splits into two opposing camps: pro-court
versus pro-parliament. The pro-court party want to see the constitution shaped
and policed by the courts. Judges should prevent the state from infringing
peoples rights, and should also, perhaps, uphold obligations between and
within institutions: stopping Parliament legislating in matters given to the
devolved assemblies, for instance, or reinforcing the conventions of ministerial
responsibility. The pro-parliament party believes that political power can only
be legitimately exercised through democratic institutions. Judges should, as far
as possible, stick to applying the laws legislatures produce, and should strive
not to distort the political processes of the constitution. And then there is
the non-aligned group, amongst which I include myself, who see merit in
each approach, and believe that both the courts and legislatures must play a
significant part in the legal and political life of the constitution. In the debate
about the content of a written constitution considerable controversy will arise
between these two camps: to what extent will judges be required to enforce
the content of the new constitution?
Supporters of increased judicial power often remind us of Lord Hailshams
description of the United Kingdom as an elected dictatorship.6 Not only
does Parliament possess, it is claimed, legally unchecked power, it is an illusion
to 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 a
supine Parliament. We need then a written constitution in order to rebalance
the constitution, empowering the judges to provide checks and balances against
a supposedly sovereign Parliament. The continued popularity of this description
of the constitution is surprising. Even if it was a fair accusation when advanced
by Hailsham, it is far from an accurate picture of the contemporary constitution.
In recent years Parliament, and the executive, have become ever more
constrained by the courts and other constitutional institutions. The European
Communities Act 1972, the Human Rights Act 1998 and the devolution
legislation all provide legal and political limits on Westminster. Many of these
legal 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.67.
14
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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. In
addition to the courts, the devolved institutions and some of the institutions
of the European Union provide political constraints on Westminster: checking
its power, scrutinising its actions. None of this amounts to a blanket argument
against conferring further specific powers on judges, but the claim that we
need a written constitution to shift power away from Westminster to rebalance
the constitution is outdated: the rebalance has already occurred.
A further difficulty with appointing the judges as the policemen of the
constitution is that many of its parts appear inherently non-justiciable. Take
ministerial responsibility, for instance. Ministerial responsibility is the cornerstone of the UK constitution, connecting the executive and the legislature.
To a considerable extent it is already codified, and many of the conventions
that regulate the relationship between ministers and Parliament can be found
in the Ministerial Code.7 It is hard, though, to see how a court could enforce
these conventions. How could a court decide when a minister had failed to
give a satisfactory answer to a parliamentary question, or when her conduct
in office was so poor that she should resign or be demoted? How could a
judge separate those errors of judgment that were personal from those that
show the minister is not fit for office? And, even if these conundrums could be
resolved, what sort of remedy could the court offer, and to whom? The bulk
of ministerial responsibility, like many other conventions, could not be turned
into court-enforced law. It shapes and is shaped by a political relationship
between Parliament and the executive, a relationship that changes over time,
depending on the relative strengths of each institution. Having an outside
institution, the courts, step in and try to enforce the convention would change
it in radical and unpredictable ways.
It might be objected that codification does not require juridification: we
could draw up a constitution that set out key constitutional conventions, but
which did not permit judges to enforce them.8 A large portion, perhaps even
the bulk, of the proposed constitution might then not be enforceable by the
courts. Such a document would raise two concerns. First, there is a risk that
the courts would not accept such a limitation on their powers, or would seek
ways around it; the notion that rights should be paired with legal remedies
is widespread. Secondly, if a constitution was drafted that succeeded in not
adding to the power of the judiciary, and the bulk of its provisions were legally
unenforceable, it then becomes hard to see much utility in the enterprise. It
could not even be argued that the supposed constitution would clarify key
conventions, as the conventions could evolve whilst the written constitution
remained constant. Perversely, the facade erected by the written constitution
might make it harder to understand the content of the actual constitution, not
easier.
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.147149.
Analysis 15
The precipitation of constitutional crises

Normally, certainty and clarity are desirable features of a legal system. Criminal
law, 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 of
uncertainty can be a benefit.9 This is particularly true in parts of constitutional
law and practice where uncertainty may mask, and allow us to avoid, a costly
and unnecessary political choice. There are several examples of such useful
vagueness in the British constitution. Perhaps one of the longest standing
concerns the jurisdiction to determine the scope of parliamentary privilege, an
entitlement which has been asserted by both courts and the Commons. Both
have been able to maintain their incompatible claims by studiously avoiding
forcing a resolution of the question.10 The legal relationship between Britain
and the European Union is similarly unclear, with the boundaries between
Parliament and the European institutions, and the British courts and the
European Court of Justice, left ambiguous. This relationship is one of the key
parts of our contemporary constitution, so how might a written constitution
delineate it? Let us consider three possibilities, which embody very different
balances of power between the various institutions.
First, the Europhile model, a model which is broadly in line with the
claims of the European Court of Justice.11 Under this model, European law
takes effect within the United Kingdom simply because the United Kingdom
is a member of the European Union. European law would be supreme over all
domestic lawincluding the provisions of the new constitution. The European
Court of Justice would be entitled to determine the interpretation of European
law and, additionally, whether a particular question fell within the scope of
European law. National courts would be bound to follow all of its rulings.
Second, the German model, a model which is broadly in line with
the position adopted by the German Constitutional Court in the Maastricht
decision.12 Under this model, European law would take effect within the
United Kingdoms legal order through the new constitution. It would take
precedence over conflicting rules of ordinary domestic law, including statutes,
but would not take precedence over the constitution itself. National courts
would be bound to follow the rulings of the European Court of Justice only
when those decisions were compatible with the constitution. Further, the court
might also be entitled to determine whether the decisions of the European
Court of Justice fell within the jurisdiction allotted to it by the domestic
constitution.13
9 For extended discussion of these points, see N.W. Barber, Legal Pluralism and the European
Union (2006) 12 E.L.J. 306.
10 See Barber, Legal Pluralism and the European Union; J. Chaftez, Democracys 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 national

politicians. Under this model, European law would take effect in the United
Kingdom 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 the
statute was ambiguous, or where it appeared that Parliament had not intended
to enact a law that conflicted with its European obligations. The primary
duty of national courts would be to give effect to Parliaments intentions as
embodied in statute, and the decisions of the European Court of Justice would
only bind national courts so far as they were compatible with this duty.
There are many other possible constructions of the relationship between
Britain and Europe; indeed, for simplicity, each of our three models conflated
a number of distinguishable issues. It is not possible, at present, to identify
definitively which of the three most accurately captures Britains relationship
with 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 the
relationship. The majority of the judges did not address the constitutional issues
raised by the Merchant Shipping Act 1988. Lord Bridge was the only one to
speak to the issue. In a much-quoted passage he wrote that there was nothing
in any way novel in according supremacy to rules of Community law in those
areas to which they apply.15 This statement could be reconciled with any of
the three models set out earliereven the first, Europhile, model, given that
the supremacy of the European Court of Justice is a rule of Community law.
Of course, it is not even clear which institutionthe British courts, the
European Court of Justice, Parliament or the authors of the treatiescould
authoritatively determine the legal force of European law. Like the
parliamentary privilege example mentioned earlier, much of the uncertainty
turns on this very question. There is a temptation to assume that there must
be one institution that has the legalor politicalauthority to determine
the 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 the
broader political context in which the crisis arises. It may not just be hard to
determine how this fundamental constitutional question would be answered,
there may not be an answer to be determined. Indeed, if we are lucky, the
crisis may never arise. Whilst grand disagreements over the fundamental lines
of authority in the constitution look important, they may be of little practical
significance, provided the parties in the dispute agree on the rest of the laws
within the system. The dispute over the jurisdiction to determine the scope of
parliamentary privilege has continued for well over a hundred years, and has
caused few difficulties in that time.
It might be argued that clarity in this area would be a good thing: people are
entitled 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.
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.
15
Analysis 17
the process of producing a written constitution could provide an opportunity

for 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 looming
presence 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 political
compromise; a tacit agreement to disagree.17 It allows supporters of ECJ
supremacy and supporters of national supremacy both to claim victory;
conversely, and perhaps even more importantly, it avoids either constituency
having to admit defeat. Whilst these parties cannot reach a compromise
through the adoption of an agreed middle course, these ambiguities provide
a compromise framework within which their inconsistent claims can co-exist.
Provided that the practical conflict within this model remains unrealised, and
actual disputes are avoided, this can provide a stable, even a long-lasting, form
of settlement. The settlement avoids unnecessary and potentially destructive
conflict, and allows the protagonists to work together on beneficial projects
where agreement exists.
Secondly, these ambiguities could provide a form of what Alison Young
and I have described as constitutional self-defence.18 A rule of constitutional
self-defence is one which empowers an institution to protect itself against
other constitutional bodies. For instance, legislatures are given judicial powers
over their members to stop the encroachment of the courts, judges often
run the administrative side of the court process to protect the autonomy of
the judicial branch from the executive. Sometimes these measures are more
aggressive, giving one institution a weapon it can use against another: for
instance, giving one legislature the power to strike down the acts of another
legislative body. Competing claims to supremacy arm national and European
courts with weapons that may help ensure mutual respect and restraint. If the
potential conflicts were realised, generating disagreement about the law which
applied to individuals, all sides in the dispute would pay a price. Whilst it
is 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 towards
a harmonious interpretation of the law. It encourages the ECJ to interpret
European law in a manner that will be palatable to national courts,19 and, at the
same time, discourages national courts from blindly insisting on the primacy of
national rules. In short, the competing supremacy claims may serve to create
an atmosphere of co-operation between these courts, where each side has an
incentive 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 University
Press, 2003).
18 N.W. Barber and A.L. Young, Prospective Henry VIII Clauses and their Implications for
Sovereignty [2003] P.L. 112.
19 As evidence of this see, perhaps, J. Coppel and A. ONeill, The European Court of Justice:
Taking Rights Seriously? (1992) 12 L.S. 227, though see also J. Weiler and N. Lockhart, Taking
Rights Seriously Seriously: The European Court and its Fundamental Rights Jurisprudence (1995)
32 C.M.L.Rev. 51 and 579.
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Britains relationship with Europe is not the only area of the constitution
marked by useful ambiguity. The constitutional relationships between the
Monarch and Prime Minister, between the Prime Minister and his cabinet,
and between the executive and the legislature all have significant areas of
uncertainty within them. Some of these uncertainties may be undesirable
and should be resolved. But many serve to give each institution a plausible
constitutional argument against the other body, an argument that may serve as
a 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 this
bare accident of history does not provide an argument for us to adopt one.
Britains constitution has, by and large, been a success. It has produced stable
government andin terms of democracy, transparency, human rights and
the provision of social welfareit compares reasonably favourably with many
other constitutions. Those calling for change in particular areas often make a
strong case: the House of Lords is in desperate need of reform, for instance,
and the English Question continues to dog the devolution settlement. But
these specific issues do not show a need for wholesale reform of the entire
system. Unless advocates of a written constitution can show a need for systemic
change, for a new constitutional settlement, it is hard to see what we will gain
by undertaking the exercise. This paper has sought to show, however, what
we will risk.
N.W. Barber*
* Trinity College, Oxford.
Analysis 19
The consistency of Dicey: a reply to McLean and

Macmillan
Constitutional law; Ireland; Jurisprudence; Parliamentary sovereignty;
Scotland
McLean and Macmillan in Professor Diceys Contradictions1 believe,
somewhat implausibly perhaps, that Dicey contradicted himself. That is because
they fail to distinguish between four different doctrines. It is essential at the
outset 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 work
of constitutional law devoted to proving the truth of the first doctrine. The
polemical works on Irish Home Rule are not works of law, but are devoted to
proving the truth of the second, third and fourth doctrines.
It does not, of course, follow that, if Parliament is sovereign, it is morally
entitled to do what it likes. Dicey is in no way committed to approving an
Act of Parliament which provides that all red-headed men should be executed
next Monday. It was because Dicey believed that Gladstone was eliding the
distinction between the first and the fourth doctrines that he was so angry when
the Prime Minister sought to invoke his authority in aid of his Government
of 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 of
course mean that it was unlawful. He meant that it lacked moral authority,
partly because it did not enjoy popular approval, and partly because, in his
view, it would serve to exclude from the kingdom, against their wishes, the
Unionists of Ireland, primarily though not exclusively concentrated in the
northern counties.
Contrary to what McLean and Macmillan suggest, Dicey did not, in his
last book, Thoughts on the Union Between England and Scotland, written in
collaboration with the Scottish historiographer royal, R.S. Rait, abandon
the legal doctrine that Parliament was sovereign. Of course, he faced the
conundrum that the Scottish negotiators believed that they could, under the
Union, preserve certain fundamentals of Scottish law even in a sovereign
Parliament. Diceys answer to the conundrum was that Parliament was bound
in honour, though not in law, to preserve these fundamentals.
1
2
[2007] P.L. 435.

[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 futileA sovereign
Parliamentalthough it cannot be logically bound to abstain from
changing any given law, may, by the fact that an Act when it was
passed had been declared to be unchangeable, receive a warning that
it cannot be changed without gave danger to the Constitution of the
country.
While, from time to time, as McLean and Macmillan suggest, Scottish judges
such as Lord President Cooper have remarked, obiter, that the Treaty of Union
with Scotland was a form of fundamental law, the courts have never been
prepared to review primary legislation on the grounds that it conflicts with
the Treaty. In Murray v Rogers,3 in which defaulting poll tax payers argued
that the legislation providing for the poll tax was contrary to the Scottish
Act of Union, Lord Kirkwood stated that there is so far as I am aware, no
machinery whereby the validity of an Act of Parliament can be brought under
review by the courts. In 1800, the Act of Union with Ireland had declared
that the established Church of Ireland was unalterable; but, when Gladstone
disestablished that Church in 1869, the courts in Ex p. Canon Selwyn4 refused
to rule on its validity. The Union with Ireland Act of 1800 which was declared
to be for ever was repealed, except with regard to the six counties of
Northern Ireland, in 1922.
None of this, of course, is to suggest that Dicey was right, either in law or
in politics, only that he was consistent. In trying to prove that he was guilty of
a contradiction, McLean and Macmillan seem to me only to make confusion
worse confounded.
Vernon Bogdanor*
1992 S.L.T. 221.

(1872) 36 J.P. 54.
* Brasenose College, Oxford.
4
Analysis 21

Bill of Rights; Constitutional reform; Voting
In a nutshell, it is about making the Executive much more accountable to
Parliament and Parliament more accountable to the people, and I really mean
that. So explained Jack Straw MP (the new Lord Chancellor and Secretary of
State for Justice) appearing before the House of Lords Constitution Committee1
when asked about the overarching aims of the package of constitutional reform
proposals announced by Gordon Brown in his first statement to the House
of Commons as Prime Minister on July 3, 2007.2 The Governance of Britain
Green Paper published the same day is explicitly not a final blueprint for
our constitutional settlement but a first step in a national conversation.3 At
times the Green Paper bears a passing resemblance to Will Selfs 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 such
as flying the Union Flag on public buildings, through the methods used to
present statements of government expenditure, to the genuinely constitutional
blockbuster 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 years
of constitutional reform during Tony Blairs administration, including: independence 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 catch
the public imagination; a new system for judicial appointments; remodelling
(rather than the originally envisaged abolition) of the office of Lord Chancellor; and a United Kingdom Supreme Court, due to start work in October
2009. Why is more change needed? The answer, the Green Paper suggests, is
that further constitutional renewalthe vogue phrasecan help address two
problems. The first is public disengagement with the political process and their
lack of trust and confidence in democratic institutions. The second is the need
for greater social cohesionbetween the nations and regions of the United
Kingdom, and between people of different races and religions. So, whereas
many of the Blair reforms focused on the architecture of the constitution,
much of this latest phase of modernisation is directed at more intangible and
slippery 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 be
seen as steps to address unfinished business from the Blair era. House of Lords
1
Uncorrected transcript of evidence, October 23, 2007, Q45.

Hansard, HC col.815 (July 3, 2007).
3 Cm.7170, p.5.
2
22
Public Law
reform will be completed by creating a substantially or wholly elected second

chamber (note the orthe Green Paper sensibly hedges its bets on this),
though not during the 2007/08 Session of Parliament. English regional governance is taken forward through the establishment of nine regional ministers
(part-time roles for existing ministers) and nine House of Commons select
committees. The Blair administration accepted, in principle, the case for a
Civil Service Act to replace the current regulations made under prerogative
powers . . . but dragged its feet; under Brown, legislation will be brought
forward during the 2007/08 Session. Modernisation of voting arrangements,
including the prospect of lowering the age to 16 and weekend voting, follow
on from a series of pilot projects. Even the eye-catching proposal for a British
Bill of Rights and Duties falls under the head of unfinished business: during the
passage of the Human Rights Bill in 1998, incorporation of some Convention
rights into national law was conceived as a first step in a journey.
Other aspects of the reforms mark the Governments acceptance of longrunning calls for change. Prerogative powers to ratify treaties are to be placed on
a statutory footing, making clear Parliaments scrutiny role. War-making powers, the subject of recent inquiries by two parliamentary committees and several
Private Members Bills, will be brought under greater parliamentary controlthough it remains to be seen whether this will be achieved by legislation
or a new constitutional convention formalised by resolutions of both Houses.
There are also more unexpected initiatives. Little more than a year after
they have come into force, the Government is opening up debate about
the arrangements for judicial appointments in England and Wales. In a hefty
consultation paper published in October 2007, the Ministry of Justice seeks
views 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 as
post-appointment hearings.4 Repeal or amendment of provisions in the Serious
Organised Crime and Police Act 2005 would make it easier for people to
protest outside Parliament.5 Proposals for parliamentary confirmation hearings
for certain senior public posts may usher in a new approach to accountability
as well as concern to avoid the excesses of the US confirmation hearings
system.6 A new relationship between central and local government, set out in
a concordat, is promised. But the most startling new initiative is the tentative
suggestion that in time there might be a concordat between the executive
and Parliament or a written constitution.7
Ministry of Justice, The Governance of Britain: Judicial Appointments, Cm.7210.

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 by
the Mayor, may serve as something of a model.
7 Cm.7170, para.212.
5
Analysis 23
Gaps
There are some gaps in the Green Paper. Very little is said about the
impact of the United Kingdoms membership of the European Union on
governmental practices and future reform of our domestic constitution. It
is, arguably, quite difficult to address the two problems the Green Paper
aims atpublic disengagement with the democratic process and the need to
build social cohesiveness around a stronger sense of Britishnesswithout
considering the role of the European Union. Attempts to reinvigorate the
House of Commons powers vis-`a-vis the executive need to acknowledge
that a significant proportion of policy and legislative initiatives stems from the
European Union rather than the UK Government. Also notable by its absence,
in this context and others, is any reference to referendums as a method
of re-engaging the public with the democratic process. The Conservatives
and the Liberal Democrats both support a referendum on ratification of the
EU Reform Treaty, but the Government has ruled out any review of the
constitutional principles that ought to govern when referendums are called on
major constitutional reforms.8
Also absent from the Green Paper is a clear vision for the future of devolution.
Indeed, paras 141144 of the Green Paper make strange reading. This passage
has about it the air of a piece of text that has been cut and pasted out of
context. No policy proposals are made. It is perhaps intended to be a riposte to
the Conservatives call for English votes for English laws, but does not address
this directly. This next round of constitutional reform takes place at a time
when the devolved governments in Scotland, Wales and Northern Ireland all
include ministers whose ultimate political aim is to break the link between
those nations and the United Kingdom. Another gap is that little is said about
the role of the reformed House of Lords.
Consensus and controversy
Many aspects of the Brown-Straw reform agenda will receive support from the
Conservatives and Liberal Democrats. The project to reform the prerogative
powersstarting with prior parliamentary authorisation for troop deployments,
putting the Ponsonby rule on statutory footing to ensure scrutiny of treaties
ahead of ratification, and the principle of a Civil Service Actenjoys broad
cross-party support. Giving greater powers to the House of Commons to
hold the executive to account is a motherhood and apple pie issue; but
the opposition parties will want a great deal more than is on offer in the
Green 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 on
major national constitutional issues are compatible with the role of the elected representatives of the
people in the House of Commons. The answer: The Government have no plans to do so. Parliament
is sovereign in the UK political system. This means that it is for the Government to take a view and
for Parliament to decide whether or not to hold a referendum on any particular issueand what the
terms of that referendum should be (Lord Hunt of Kings Heath, Hansard, HL col.WA193 (October
30, 2007).
24
Public Law
timetable and select committee chairmen elected by the whole House are
likely to be steps too far for the Governmentthough to Jack Straws credit
he has indicated a willingness to debate such issues.9 For the Conservatives,
the English Question is a live constitutional problem sidestepped by the
Green Paper and they (with Liberal Democrat support) are arguing that Bills
relating to England only should be scrutinised and voted on only by MPs for
English constituencies. The Prime Minister, not least because he represents a
constituency in Scotland, will not give way on this.
Next steps
By late October 2007, four consultation papers on specific aspects of the reform
agenda had been published: on judicial appointments; on troop deployment
powers and treaty-making (other prerogative powers will follow); on protests
outside Parliament; and on reform of the role of the Attorney General. Subject
to the outcomes of the consultation processes, a Draft Constitutional Renewal
Bill is expected in early 2008 and will be subject to pre-legislative scrutiny in
Parliament,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 and
national level. Gordon Brown was quick to dismiss the idea that there should
be a single constitutional convention of the great and the good, prompting
Anthony Kings wry observation, citing events in Philadelphia in 1787, that
well-considered and durable constitutions do actually emerge from gatherings
of the great and the goodand from nowhere else.11 A central aspect of the
national conversation will be to work with the public to develop a British
statement of values that will set out the ideals and principles that bind us
together as a nation. The Government expects tolerance to emerge as a,
possibly the, central value.12 As part of the discussion on Britishness, Lord
Goldsmith, the former Attorney General, will make a report on citizenship
to the Prime Minister in March 2008. The relationship between the British
statement of values (which is not the same as a statement of British values) and
the British Bill of Rights and Duties remains to be seen.
Andrew Le Sueur*
9
House of Commons Constitutional Affairs Committee, Transcript of uncorrected evidence, July
24, 2007 (to be published as HC Paper No.987-i).
10 The Governments concession of a draft Bill and pre-legislative scrutiny for this constitutional
measure is in itself a significant development. Despite the Blair administrations stated support for draft
Bills as a way of improving the policy-making and legislative process, no major constitutional reform
Bill was introduced in this way.
11 Constitutional Fiddling, Prospect Magazine, September 2007. Jack Straw responds to this point
by 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 be

implemented
Publishing a draft legislative

programme some months ahead of
Queens Speech [101]
Executive action. The first draft

programme published in July 2007:
The Governance of Britain: the
Governments Draft Legislative
Programme, Cm.7175. Earlier
publication in future years.
Reform of Attorney Generals

role [24]
Consultation: The Governance of

Britain: a Consultation on the Role of
the Attorney General, Cm.7192); to be
included in the Draft Constitutional
Renewal Bill.
Deployment of armed forces [25]

Britain: War powers and treaties; limiting
Executive powers, Cm.7239. Either
primary legislation (if so, included in
the Draft Constitutional Renewal
Bill) or a new convention recognised
by parliamentary resolutions.
Parliamentary involvement in
ratification of treaties [31]

Britain: War powers and treaties; limiting
Executive powers, Cm.7239. To be
included in the Draft Constitutional
Renewal Bill.
Regulation of the civil service on

a statutory footing rather than
prerogative legislation [40]
Consultation with unions but not the

public on the basis of the November
2004 Draft Civil Service Bill. To be
included in Draft Constitutional
Renewal Bill.
Review of other prerogative

powers [51]
Primary legislation to abolish or put

various powers on a statutory footing.
A complex project unlikely to come
to fruition during the 2007/08
Session, except for abolition of the
prerogative of mercy to be included
in Draft Constitutional Renewal Bill.
Prime Minister to seek approval of

House of Commons before
seeking dissolution for a general
election [35]
Executive action following

consultation which will, through
precedent, become a constitutional
convention.
26
Public Law
Table 1: (Continued)
Initiative
How and when to be

implemented
Allow Speaker of the House of

Commons to consider a request
from a majority of MPs for a
recall, not merely (as at present)
following a request from the
government [37]
Amendment to the Standing Orders

of the House of Commons,
presumably during 2007/08 Session.
Reform of governments role in

Church of England appointments
[57]
Primary legislation may be needed

but executive action has already led
to Prime Minister no longer having
discretion in relation to selection of
bishops.
Reform of judicial appointments

[69]
Consultation on options: The

Governance of Britain: Judicial
Appointments, Cm.7210. Primary
legislation may be needed to amend
the Constitutional Reform Act 2005.
House of Commons role in

relation to other public
appointments [74]
To be included in Draft
Constitutional Reform Bill.
Limiting ministers involvement in

the granting of honours [85]but
not peerages
Executive action with immediate

effect.
Intelligence and Security

Committee to operate so far as
possible like other select
committees [92]
To be included in the Draft

Constitutional Reform Bill.
Annual debates in House of

Commons on main departments
objectives and plans [103]
Consultation with Modernisation

Committee leading to changes in
parliamentary practice, probably
during 2007/08 Session.
Independence for the Office of

National Statistics [112]
Statistics and Registration Service Act

received Royal Assent in July 2007.
Nine regional ministers for

English regions, to be shadowed
by nine regional select committees
[115], [119]
Ministerial appointments by
executive action with immediate
effect; select committees are a matter
for the House of Commons.
(continued overleaf )
Analysis 27
Table 1: (Continued)
Initiative
How and when to be

implemented
Ministerial Code amended in

various ways, with a new
Independent Adviser [121]
Executive action with immediate

effect.
Reform of composition of House

of Lords to make it substantially
or wholly elected [129]
Primary legislation will be required

following cross-party discussions; Bill
unlikely to be introduced during
2007/08 Session.
Arrangements on election day

[149], including weekend voting
Primary legislation will be required.
Review of voting systems [155]
Executive action, due to be

completed by end of 2007.
Public petitions [157]
House of Commons Procedure

Committee to consider
improvements to the way that
petitions to Parliament are received
and considered.
Easing restrictions on protests

around Parliament [164]
Consultation followed by
amendment of the Serious Organised
Crime and Police Act 2005, probably
during 2007/08 Session
Right of charities to campaign

[167]
Primary legislation may not be

needed.
Local communities [169]
Consultation on various ways to

enhance democracy by devolving
more power directly to the people.
28
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Judicial decision-making; Jurisprudence; Precedent; Privy Council
Three times since the beginning of the 21st century the Judicial Committee of
the Privy Council (JCPC) has exercised its undoubted power to overrule its
own earlier decisions: in Lewis v Attorney General (Jamaica),1 Boyce and Joseph v
The Queen2 and, most recently, in Gibson v Government of the United States of
America.3
In this last-mentioned case the JCPC overruled its earlier decision in
Cartwright v Superintendent of HM Prison4 in which the Board had held, by a
majority of three to two, that an appeal against a grant of habeas corpus by
a 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 Court
of Appeal Act (as amended); which provides for a right of appeal against:
any declaratory order, order of mandamus, order of prohibition or order of
certiorari made by the Supreme Court in any proceedings. While the Boards
conclusion that the Court of Appeal did not, in fact, have jurisdiction under
s.17(3) to deal with an appeal against a grant of habeas corpus was in itself
uncontroversialall seven members of the Board agreed upon this pointthe
Board was deeply divided on the question of whether it should overrule its
earlier decision in Cartwright.
Unlike the House of Lords, which only recognised a power to overrule
its own decisions following the issue of the Practice Statement in 1966,5 the
JCPC has never considered itself to be bound by its own prior decisions.6 This
difference 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 could
not deliver dissenting judgments and even then assenting judgments were not
permissible.7 Notwithstanding the existence of the power to overrule its own
decisions the JCPC has always recognised that it should be exercised with great
hesitation,8 and previously the power had only been exercised on a handful of
occasions, of which the most recent and, perhaps, well known is the decision
in Pratt and Morgan v Attorney General (Jamaica).9 In this case the Board decided
1
[2001] 2 A.C. 50.

[2004] UKPC 32; [2005] 1 A.C. 400.
[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: see
Attorney 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.
2
3
Analysis 29
to overrule the earlier decision in Riley v Attorney General (Jamaica) and to allow
prolonged delay to be taken into account in determining whether the carrying
out of the death sentence violated a constitutional guarantee against inhuman
or degrading punishment. To an extent, the Boards decision to exercise its
overruling power in this case was made easier by the fact that all nine members
of the Board were unanimous in concluding that the earlier decision in Riley
should be overruled. However, in the three most recent instances in which
the JCPC has overruled itself, the question of whether they should overrule an
earlier decision has deeply divided the members of the Board.
The aim of this article is, therefore, to look at the differing approaches of the
majority 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 common
principles underpinning the exercise of its overruling power by the JCPC.
Recent overruling cases
Lewis
Three distinct questions arose on this appeal from Jamaica. Put broadly, they
were as follows: first, whether the exercise of the prerogative of mercy is
judicially reviewable; secondly, whether a condemned prisoner has the right
not to be executed before his petition to an international human rights
body has been concluded; and, thirdly, whether the passage of time and
the way that a condemned prisoner is treated in prison could violate the
constitutional guarantee against inhuman or degrading treatment so as to lead
to the commutation of the death sentence. Whether or not the Board should
overrule an earlier decision had to be answered separately in relation to each
of these questions.
The first question had previously been considered by the Board on two
occasions, in De Freitas v Benny10 and Reckley v Minister of Public Safety and Immigration (No.2),11 and on both occasions the Board had ruled that the exercise of
the prerogative was non-justiciable. In considering whether or not to overrule
these earlier decisions, in particular Reckley (No.2), the majority acknowledged
that the need for legal certainty demanded that they should not depart from
such a recent decision which had been fully reasoned unless there were strong
grounds to do so. However, whereas herea mans life was at stake, the
majority considered that they were not obliged to abide rigidly by the principle
of stare decisis; the earlier decision could be overruled so long as they were
satisfied 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 very
recent decisions of the Board. In Fisher (No.2) v Minister of Public Safety and
Immigration13 and Higgs v Minister of National Security,14 both on appeal from
10
[1976] A.C. 239.

[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.
11
30
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the Bahamas, the Board had expressly rejected the argument that a prisoner
enjoyed a constitutional right not to be executed prior to the completion of
his petition to an international human rights body, such as the Inter American
Commission of Human Rights (IACHR). While it is true that in between
these two decisions, in Thomas v Baptiste,15 the Board had held on almost
identical facts that the due process clause contained in the Constitution of
Trinidad and Tobago should be read as including the right of a condemned
prisoner to complete his petition to the IACHR before being executed, the
Board 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 be
distinguished on the basis that the Constitution of the Bahamas, unlike the
Constitution of Trinidad and Tobago, did not contain an express due process
clause. In Lewis, the majority sidestepped this somewhat inconvenient fact by
upholding that aspect of Thomas which recognised the right of a condemned
prisoner to await the outcome of his petition to the IACHR before he was
executed; while, at the same time, disregarding that aspect of the ruling which
held 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 due
process clause. In Thomas and Higgs, the Board had also expressly rejected
the argument that prison conditions, even if they violated the constitutional
guarantee against inhuman or degrading treatment, could of themselves lead
to a commutation of the death sentence, on the ground that there was not a
sufficient nexus between the conditions in which a prisoner was held and
his execution.16
In overruling the Boards earlier decisions in Fisher (No.2) and Higgs, on
the right of a condemned prisoner to await the outcome of his appeal to the
IACHR before he is executed, and in Thomas and Higgs, on the relevance of
prison conditions to the commutation of the death sentence, the majority in
Lewis made little or no attempt to explain why these decisions were wrong.
This caused Lord Hoffmann, in an exceptionally critical dissenting opinion, to
take issue, not only with the majoritys decision on the three questions arising
on the appeal, but also with the majoritys approach to the principle of stare
decisis. Citing the majority judgment of the US Supreme Court in Planned
Parenthood of Southeastern Pennsylvania v Casey,17 Lord Hoffmann argued that the
Board should not overrule a previous decision unless a justification for doing so
could be advanced, which extended beyond a doctrinal disposition to come
out differently. This rule was particularly relevant, in Lord Hoffmanns 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 because
its members on a given occasion have a doctrinal disposition to come
out differently, the rule of law itself will be damaged and there will be
no stability in the administration of justice in the Caribbean.18
15
[1999] 3 W.L.R. 249.

Higgs, at 1381E.
17 505 U.S. 833 (1992).
18 [2001] 2 A.C. 50 at 90.
16
Analysis 31
Boyce
In this case, on appeal from Barbados, which was argued before an enlarged
panel of seven members, the Board had to consider the constitutionality of
the mandatory death penalty for murder pursuant to s.2 of the Offences
Against the Person Act 1994.19 Since the Board had already held in Reyes
v The Queen20 that a mandatory death penalty violated the guarantee against
inhuman or degrading punishment to be found in all of the independence
constitutions of the Commonwealth Caribbean, the only question for the
Board to consider in Boyce and Joseph was whether the mandatory death penalty
was saved from constitutional challenge by a general savings clause in the
Constitution of Barbados,21 which provides that no existing law shall be held to
be inconsistent or in contravention of the fundamental rights guaranteed by the
Constitution. Counsel for the appellants sought to argue that, notwithstanding
the savings clause for existing laws, s.2 should be construed by reference to the
modifications 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 into
conformity with [the Constitution].
The effect of construing s.2 through the prism of the modifications clause
would be to substitute a discretionary death penalty in place of the mandatory
death penalty, thereby bringing it into conformity with the Constitution. In
fact, the Board had already considered this self-same question a few months
earlier in relation to the Constitution of Trinidad and Tobago, in Roodal v
The State,22 and in that case had held that pursuant to a similar modifications
clause to be found in s.5(1) of the Constitution Act 1976, a law prescribing a
mandatory death penalty for murder23 would be read as providing instead for
a discretionary death penalty.
In rejecting the appellants argument in relation to the Constitution of
Barbados, and overruling the earlier decision in Roodal, Lord Hoffmann,
delivering judgment for the majority, acknowledged that ordinarily there
would be powerful arguments for not departing from the earlier decision. He
argued, however, that the Board was justified in doing so in this case because
the issue was one of great public importance in relation to the constitutionality
of the death penalty and because the effect of following the decision in
Roodal would have been to lay open the whole of the pre-independence
law of Barbados to constitutional challenge for lack of conformity with the
fundamental rights guaranteed by the Constitution. In Lord Hoffmans view
these constituted exceptional circumstances which justified the overruling
of Roodal. The minority, while maintaining that the decision in Roodal was
19
Which replaced s.2 of the Offences Against the Person Act 1868.
[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.
20
32
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right and that the majoritys reading of the Constitution was not the only
possible reading, did not seek to mount any challenge to the justifications
offered by Lord Hoffmann for overruling the decision in Roodal.
Gibson
In contrast to Lewis and Boyce, in both of which the Board was divided on
the substantive issue(s) raised by the appeal, all seven members of the Board
in Gibson agreed that the Boards earlier ruling in Cartwright was wrong. They
were, however, still divided four to three on the question of whether it should
be overruled.
Delivering judgment for the majority, Lord Brown acknowledged that the
power 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 previous
wrong decision was thought to be impeding the proper development of
the law or to have led to results which were unjust or contrary to public
policy.24 Though neither of those factors was present in this case, Lord
Brown considered that the Board would still be justified in overruling the
decision in Cartwright for the following reasons. First, the members of the
Board were unanimous in holding that Cartwright was wrong. Secondly, the
answer to the question posed in Cartwright did not depend on the proper
construction of a complicated statutory provision where it is possible to have
more than one view on which construction is right. Nor was it the kind of case
where the Board was seeking to overrule an earlier decision simply because a
new majority are doctrinally disposed to come out differently. Thirdly, the
case concerned the liberty of an individual who, had the law been interpreted
correctly, would not have been rearrested. Finally, the Board should recognise
that its task is to ensure justice according to the law. Where, as here, the
Court of Appeal had no jurisdiction to entertain the appeal the Board should
not now shrink from saying so.25
Lord Hoffmann, delivering judgment for the minority, found himself in the
curious position in Gibson of having been part of the dissenting minority in
Cartwright, but at the same time regarding himself as bound by the principle
of stare decisis not to overrule the majority decision in Cartwright. In Lord
Hoffmanns view the power of a final appellate court to overrule an earlier
decision must be exercised on some rational principles. In this regard the
observations of Lord Reid in Hudson provided an important guide, as did the
comments of the US Supreme Court in Planned Parenthood:
. . . a decision to overrule should rest upon some special reason over and
above belief that the prior case was wrongly decided.26
No such special reasons existed in this case. The decision in Cartwright was
not impeding the proper development of the law. Following Cartwright, the
24
[1972] A.C. 944 at 966.

[2007] UKPC 52; [2007] 1 W.L.R. 2367 at [28].
26 505 U.S. 833 at 864 (1992).
25
Analysis 33
Bahamian Government had amended s.11(5) of the Extradition Act so as

to confer a right of appeal against a grant of habeas corpus. Nor had the
decision led to a result which was unjust or contrary to public policy. Quite
the opposite: the decision had allowed the correction of a plain miscarriage
of justice, the original grant of habeas corpus to the appellant being itself
clearly based on an error of law; and supported public policy in allowing the
Bahamas to comply with its international obligations. Overruling an earlier
decision in such circumstances would only serve to encourage attempts to
revisit cases decided by a narrow majority. As Lord Hoffmann had already
noted in Lewis, this could have the effect of seriously undermining the stability
of 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 towards
overruling its earlier decisions,27 in the quarter century following the issue of
the 1966 Practice Statement, J.W. Harris argues that, despite judicial reluctance
expressly to affirm the principles that govern the exercise of the overruling
power, it is nonetheless possible through a close analysis of their Lordships
reasoning to identify a set of core principles underpinning the exercise of the
power.
J.W. Harris takes as his starting point the oft-repeated dictum that
wrongness is not enough of itself to warrant an earlier decision being
overruled. The values inherent in the principle of stare decisis, such as finality,
stability and consistency, which promote public confidence in the judicial
system, require that before the overruling power can properly be invoked it
must not only be shown that the earlier decision was wrong but also that the
present law, all things considered, would be improved if the earlier decision
were overruled.28 Even then, however, the power to overrule is only a prima
facie power and is subject to a number of constraining principles, by far the
most important of which is the no new reasons principle which is linked
to the rationale of finality. This means that even where it is arguable that
the law would be improved if the earlier decision were overruled, a final
appellate court may still decline to exercise its overruling power in the absence
of new distinct reasons which were not considered by the court when the
earlier 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 court
regards itself as obliged to enforce its own view of the matter. According
to J.W. Harriss scheme, objective wrongness is to be distinguished from
impressionistic wrongness. In the former case there is a perception that
there is an objectively right answer to the question facing the court: it is not
27 J.W. Harris, Towards Principles of OverrulingWhen Should a Final Court of Appeal Second
Guess? (1990) 10 O.J.L.S. 135.
28 See also Practice Statement (HL: Judicial Precedent) [1966] 1 W.L.R. 1234.
34
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supposed on either side that there are two views . . . each of which is equally
plausible.29 In the latter case what separates those on either side is rather a
matter of subjective impression: there are two tenable views,30 or two
eminently possible views.31
Where a decision is infected by impressionistic wrongness, the finality
rationale holds sway and the court is not justified in overruling the earlier
decision. 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 of
finality, to return to this House in the hope that a differently constituted
committee might be persuaded to take the view which its predecessors
rejected. True that the earlier decision was by majority: I say nothing
as to its correctness or to the validity of the reasoning by which it was
supported. That there were two eminently possible views is shown by
the support for each by at any rate two members of the House. Doubtful
issues have to be resolved and the law knows no better way of resolving
them than by the considered majority opinion of the ultimate tribunal. It
requires much more than doubts as to the correctness of such opinion to
justify 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 in
overruling an earlier decision on the ground that fidelity to objective legal
truth on fundamental matters should prevail over the finality rationale.33 J.W.
Harris accepts that there are no mechanical means by which decisions can be
assigned to the categories of impressionistic or objective wrongness; or
even of deciding whether a decision relates to a principle of fundamental
importance. However, in the case of the rules and principles of the common
law fundamentality will depend upon a judgment about the importance of
the rights they embody against the executive or the mutual responsibilities of
citizens which they embody.
Though J.W. Harris claims no more for his framework of distinctions than
that it makes explicit the phenomenology of adjudication in overruling cases,
his taxonomy clearly carries a strong normative force; giving precedence to
the values inherent in the doctrine of stare decisis, unless the earlier decision is
seen 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 in
defining what counts as fundamental, but also because he does not accept
29
Harris, Towards Principles of OverrulingWhen Should a Final Court of Appeal Second
Guess?, 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 OverrulingWhen Should a Final Court of Appeal Second
Guess?, at p.189
34 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 automatically
trump the other values that may be in play in the case; in particular, the
value of doing overall justice and improving the state of the law for the
benefit 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 take
into account the possibility that reasons may be given a different and more
appropriate weighting in a subsequent appeal so as to produce a more just
decision. The principle thus confers an arbitrary advantage on the court initially
setting the precedent, based on nothing more than the fortuity that it was
the first court that had the opportunity to set a precedent in respect of the
issue.36 B.V. Harris would, accordingly, substitute for the no new reasons
principle a much more open-textured discretion, which would allow the court
systematically to weigh up all competing considerationsthe values inherent
in the principle of stare decisis and the consequences of the perpetuation of a
wrong precedentwhen deciding whether or not to exercise the overruling
power.
While these alternative approaches to the exercise of the overruling power
may not map exactly on to the majority and minority judgments in Lewis and
Gibson there is a sufficient correspondence between them to suggest that in both
Lewis and Gibson the majority favoured the more liberal approach advocated
by 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 decisions
were wrong, despite no new reasons being advanced, concluded that, overall,
justice would be better served by allowing, inter alia, judicial review of the
prerogative of mercy; and that this outweighed the benefits to be gained from
rigidly adhering to the principle of stare decisis. In Lord Hoffmanns judgment,
on the other hand, the failure to identify any new reasons fatally undermined
the argument for overruling the earlier decisions. In his view, what separated
the members of the Board forming the majority in Lewis from the members
of the Board who formed the majority in the earlier decisions was a mere
disposition to come out differently, which is not sufficient, according to the
conservative approach, to displace the rationale of finality.
In Gibson, all seven members of the Board held that the decision in Cartwright
was wrong and while the decision could reasonably be categorised as objectively wrong this would not be enough of itself, according to the conservative
approach, to warrant the decision being overruled because the power to overrule is also subject to the no new reasons constraint. Thus Lord Hoffmann
sought to argue that, since no new reasons were advanced in Gibson that had
not already been canvassed in Cartwright and since there was no special reason
for overruling the earlier decision, such as improving the law, the Board was
bound 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 Search
for Principle, at p.417.
36 Harris, Final Appellate Courts Overruling Their Own Wrong Precedents: The Ongoing Search
for Principle, at p.419.
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hand, the absence of new reasons was not an insuperable obstacle; whatever
the values inherent in the principle of stare decisis they were outweighed in
this case by the fact that the decision was concerned with the individuals right
to liberty and the need to ensure justice according to the law.
The correspondence with the liberal and conservative approaches may not
be so obvious in Boyce and Joseph, but it is arguable that the decision to overrule
Roodal can still be accommodated within the conservative approach, subject to
two caveats. The first is that while Lord Hoffmann, for the majority, viewed
the argument adopted by the majority in Roodal with regard to the effect
of the modifications clause as objectively wrong, it was, nevertheless, a
possible reading and the one preferred both by the majority in Roodal and
by a substantial minority in Boyce. The second is that while Lord Hoffmann
justified the overruling of the decision in Roodal on the ground that it involved
a matter of great public importance, it did not involve a fundamental
principle in the sense described by J.W. Harris. It was not concerned with
guarding the rights of the individual against the executive, but rather the right
of the executive to rely on laws which violated the rights guaranteed by the
Constitution 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 distinct
approaches to the exercise of its overruling powera liberal and a conservative
approachboth of which raise profound questions of policy and principle
which are not easily resolvable.
In Lewis the majority believed that where a mans right to life is at stake
all that is necessary to justify the exercise of the overruling power is a belief
that the earlier decision was wrong. It is submitted, however, that while
the urge to overrule an earlier decision which is believed to be wrong and
where the effect of overruling the decision could be to save a mans life may
be irresistible, respect for the values inherent in the principle of stare decisis
and the need to maintain public confidence in the judicial system also demand
the kind of close and detailed analysis of the reasons why the earlier decision
is adjudged to be wrong, which was conspicuously absent from the majoritys
reasoning in Lewis. As Lord Hoffmann caustically noted:
On the [IACHR] issue, the majority have found in the ancient concept
of the due process of law a philosophers stone, undetected by generations
of judges, which can convert the base metal of executive action into the
gold of legislative power. It does not however explain how the trick is
done.37
However, the conservative approach favoured by Lord Hoffmann is also not
without its difficulties, as demonstrated by the decision in Boyce. Why should
the 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 upholding
Roodal would have meant that the pre-independence laws of Barbados would be
subject to the fundamental rights guaranteed by the Constitution of Barbados,
there are many who would argue that this would have been a very desirable
outcome.
Though falling squarely on the liberal side of the divide, the majority
judgment in Gibson does at least offer some promise of a compromise between
these two approaches by striking a balance between the perceived need to do
justice while at the same time respecting the values inherent in the principle of
stare decisis. There is thus an implicit acknowledgment that the Board should
be less prepared to overrule an earlier decision merely because a new majority
favours a different approach to certain highly contentious issues. There is
also a conscious effort systematically to weigh up the competing considerations
for and against overruling the earlier decision. Thus, in Gibson the need to
ensure justice according to the law where an individuals liberty was at
stake was deemed sufficient to justify overruling the earlier decision. While
the appeal to justice according to the law may appear to favour form over
substance, it is arguable that public confidence in the administration of the
justice system was better served by overruling Cartwright than by allowing a
decision, unanimously agreed to be wrong, to stand merely because it was
adjudged to produce the right result by preventing the appellant from escaping
deportation on a legal technicality. It is this latter argument which lies at the
core of Lord Hoffmanns dissent and it comes uncomfortably close to the ends
being used to justify the means.
Derek OBrien*
* School of Social Sciences and Law, Oxford Brookes University. The author would like to thank
the 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 Bogdanor
Professor 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 the
constitution has good reason to envy professors who belong to countries such
as France . . . or the United States, endowed with constitutions on which
the terms are to be found in printed documents, known to all citizens and
accessible to every man who is able to read.1 Britain remains, together with
New 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 better
off with such a constitution. The Labour Party, during its long period in
opposition between 1979 and 1997, came to the conclusion that constitutional
checks and balances might be of value in helping to control what had become
in their view an elective dictatorship, and in 1991, a think tank sympathetic
to the Labour Party, the Institute for Public Policy Research, published a
highly detailed Constitution for the United Kingdom.2 Since then, the argument
has gathered strength, partly because of the large number of statutes of a
constitutional 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 Andrew
Le Sueur and Dr Andrew Stockley. But they are not to be implicated either in our arguments or our
conclusions.
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 558571; Dawn Oliver, Written Constitutions: Principles
and Practices (1992) 45 Parliamentary Affairs 135152; and Rodney Brazier, Enacting a Constitution
(1992) 13 Statute Law Review 104127. See also Brazier, How Near is a Written Constitution? (2001)
52 Northern Ireland Legal Quarterly 119.
Enacting a British Constitution: Some Problems 39
may have been undergoing a process, unique in the democratic world, with the
exception of the Israeli experience, of transforming an uncodified constitution
into a codified one, gradually and piecemeal without any sort of consensus
on what the end result should be. It might seem natural, then, to suggest
that the process now be completed with the production of a fully codified
constitution. In October 2006, Lord Goldsmith, the then Attorney General,
called for a debate on the subject3 ; and Gordon Brown, both as Chancellor of
the Exchequer, and as Prime Minister, has suggested that a codified constitution
might strengthen the sense of Britishness. The Green Paper issued shortly after
Gordon Brown became Prime Minister suggests that there is now a growing
recognition of the need to clarify not just what it means to be British, but what
it means to be the United Kingdom. This might in time lead to a concordat
between the executive and Parliament or a written constitution.4 Amongst
opposition parties, the Liberal Democrats have long been committed to a
codified 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, following
a period of constitutional reform, the vast majority of us lack a clear and
comprehensive understanding of what the terms of our constitution actually
are. He therefore suggested enacting:
. . . a codifying measure, which would contain in a single piece of
legislation all the key constitutional principles and procedures which
underpin the governance of the country. Such a measure would enable
every citizen to know and to understand how the British Constitution
works, and above all would provide a clear framework against which to
judge not only the decisions and actions of those who govern us, but also
any proposal which they may make for reform.
The drafting of a codified constitution is also, no doubt, a staple in many
university courses on constitutional law. One of the authors of this article
remembers attending, many years ago as an undergraduate at Oxford, a seminar
aimed 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 at
Oxford in the autumn term of 2006. We held weekly meetings at which small
groups of students from the law and political science faculties, both graduates
and undergraduates, prepared for discussion each week a specific section of
the constitution, for example the legislature, the judiciary, human rights.
Eventually, a complete constitution was achieved and it has been published
by the Smith Institute as an appendix to a set of essays entitled Towards a
New Constitutional Settlement edited by Chris Bryant MP and in the Political
Quarterly, 2007.6
3
In an interview on Sunday Live Sky television on October 8, 2006.

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.
4
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The exercise threw up a number of interesting issues concerning both the

desirability and the feasibility of a codified constitution. We have discussed,
with Tarunabh Khaitan, the issue of the desirability of a British constitution
in a recent article.7 The purpose of what follows is to consider the issue of
feasibility, or, more precisely, the problems which have to be resolved if it is
decided to enact a British constitution. We do not here attempt to consider
issues of substance such as, for example, the questions of how the concept of
judicial independence should be treated nor precisely what rights should be
enacted 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 constitution
should include [a]ll the key constitutional principles and procedures which
underpin the governance of the country, (our emphasis). But perhaps that is a
utopian aspiration. A constitution, after all, enacts a selection of the rules which
control the conduct of government in a state. If, moreover, the constitution
is to have, as Stephen Hockman would wish, an educative function, then it
would need to be comparatively short. A selection, therefore, would need to
be made amongst those laws and perhaps also conventions so as to isolate those
which 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 of
the constitutionthe sovereignty of Parliament, the rule of law and the
dependence of conventions upon the law. In their book, Some Problems of
the Constitution, Marshall and Moodie suggested a fourth principle, that of
ministerial responsibility. The Constitutional Reform Act 2005 reiterates the
principle 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 enacted
constitution around these principles. For they are very general in nature and
may easily conflict with each other. Indeed, Marshall and Moodie suggested
that much of the constitutional history of Britain in the 20th century might
be represented as a conflict between the principle of ministerial responsibility
and 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.499517.
See, for the distinction between a peoples constitution and a lawyers constitution, The
Political Quarterly, (2007) 78, pp.503505.
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 if
they 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.
8
It is by no means easy to determine the relative weight which each principle

should bear.
It would not be possible, therefore, to resolve the problem of selecting those
laws and conventions which express constitutional principles and procedures
by deriving them from particular constitutional principles, since these principles
are bound to be highly general in form, sometimes in conflict, and subject to
very different and perhaps politically controversial interpretations. Moreover,
as we shall see, if the principle of the sovereignty of Parliament is taken
seriously, 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; the
nature in broad outline of their mutual relations; and the nature of their
relations to the community itself.11
In addition, no doubt, most modern documents would be expected to contain
articles defining citizenship and the territorial application of the constitution,
together with articles defining the various territorial levels of government and
their respective competences, as well as a declaration or bill of rights. Beyond
that, however, there is a striking diversity amongst enacted constitutions.
Most contain a preamble in the form of a mission statement, but some
do not. Some states add social and economic rights to the standard list of
rights, while others do not. There is therefore a staple core, but little real
agreement on what should be contained in a constitution beyond that agreed
core.
The problem of selecting which rules should be enacted in a constitution
is bound to prove far more difficult to resolve in Britain than in most
other democracies which have enacted a constitution. That is because if
we investigate the origins of modern Constitutions, we find that, practically
without exception, they were drawn up and adopted because people wished
to make a fresh start.12 Most constitution-makers, do not therefore face the
difficulty of selecting from a huge inheritance of existing laws, customs and
conventions. The American Founding Fathers, for example, were enacting a
constitution de novo, so as to replace a confederal entity with a federal one. The
Indian Constitution of 1950 marked national independence. Germany in 1949
and France in 1958 enacted new constitutions to mark the beginning of new
regimes. Constitutions are generally enacted when a constitutional moment
arrives, following war, revolution, or colonial independence. Britain, however,
would be seeking to enact a constitution that encapsulates and summarises the
working of a fully functioning political regime. Moreover, any regime with an
uncodified constitution has of necessity been undergoing a perpetual process
of adaptation and change. Thus, the enacting of a constitution would be an
attempt to capture the essence of a tradition that was in the process of altering
while it was being described.
11
12
K.C. Wheare, Modern Constitutions, 2nd edn (Oxford University Press, 1966), p.34.
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 hard
to 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 to
a photograph, taken twenty or thirty years ago. The features may be the
same, but their expression, their proposition, and their whole character
have changed. In the interval between one examination of our public
policy and another, the formal part may not have greatly altered, but the
conventional, the organic working portion has been modified in all sorts
of ways. The structural elements it is true, exhibit a wonderful superficial
permanence. The Crown, the two Houses of Parliament, the Council
of Ministers, [i.e. the Cabinet], the Electorate, the Judicature, and the
mutual relations of these various powers and authorities are the material
of all the historians and jurists. There is the same machine, or at least a
machine which is painted to look the same.13
The problem for the constitution-maker in Britain is that of deciding which
elements of a fully functioning system of government ought to be selected
as being of such special significance that they should be included in the
constitution, while the system of government is itself changing, and perhaps
changing at a particularly rapid rate; for there is no reason to believe that the
era of constitutional reform which began in 1997 has yet run its course.
One issue which could prove particularly controversial is that of whether
the role of political parties and the electoral system should be specified in the
constitution. The US Constitution, drawn up before the advent of organized
political parties, has nothing to say about them. The Founding Fathers proposed
a constitution which reflected a fairly straightforward 18th century conception
of the separation of powers. Many later constitutions have chosen to follow
the American example, even though the existence of competing parties is
now a sine qua non of democratic government. The German Constitution of
1949 is one of the few, however, which does seek to regulate the activities of
parties. Article 21 of the 1949 Constitution gives the Federal Constitutional
Court the power to declare unconstitutional any party which by reason of its
aims or the behaviour of its adherents, may seek to impair or abolish the
free democratic order or to endanger the existence of the Federal Republic
of Germany, and this provision has been used by the Federal Constitutional
Court to ban extremist parties, both on the radical left and the radical
right.
Free and fair competitive elections are equally fundamental to modern
government. Yet, hardly any constitutions specify in precise detail what
electoral system is to be used in choosing the legislature. Those constitutions
which mention the electoral system at all mostly content themselves with
declaring simply that the system should be proportional. The Irish
Constitution 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, can
only be amended by referendum. In post-war Ireland, Fianna Fail governments
have twice, in 1959 and 1968, sought to alter the electoral system, but were
repudiated in referendums on both occasions. By contrast with Ireland, the
French 5th Republic Constitution of 1958 is silent on the electoral system, and
this has enabled the government to alter it by ordinary legislation. Before the
1986 parliamentary elections, President Mitterrand substituted proportional
representation for the two ballot system, with the aim of weakening the
parties of the Right, who stood to gain a large majority from the two ballot
system. The elections were, nevertheless, won by the Right which, under the
Prime Minister, Jacques Chirac, restored the two ballot system in time for the
legislative elections of 1988.
Of course, these differences between the constitutions of different
democracies reflect differences in historical experience, and yet they show
that, beyond a basic minimum core, there is often no clear boundary between
what is constitutional and what is not. Ought a British constitution to regulate
the role of the political partiesshould it include the main features of the
Political Parties, Elections and Referendums Act 2000; should the parties be
required to be democratic in their organisation, should they be required to
be open and accountable in their financial arrangements? Should the electoral
system be included in the constitutionand, if so, should it be just the
electoral system for Westminster, or also the various electoral systems used for
the devolved bodies and for local authorities? But the question of the right
electoral system, whether for Westminster, or for local authorities is now very
much a matter of political contention. It is possible that they will be altered
in the years to comelocal authorities in Scotland have recently switched
from first past the post to the single transferable vote method of proportional
legislation, and there is some pressure in Wales for Welsh local authorities
to be elected by that method. Moreover, it is not inconceivable that the
electoral system for the Commons itself will be changed in the foreseeable
future.
The issue of the electoral system raises a further problem. Tony Blair
promised that there would be no change in the electoral system for the House
of Commons without a referendum; and in a recent research paper, the House
of Commons Library claims that there is a constitutional convention that
changes to the electoral system should be agreed as far as possible on an all-party
basis. It then goes on to declare in the next sentence, somewhat confusingly,
that [t]his convention is not universally observed.14 Should this supposed
convention be put into the constitution? Should the constitution enact that
a change in the electoral system for the Commons requires a referendum?
Clearly, a statute altering the electoral system which was not put to the people
would not be invalidated by the courts. But, some might argue that there is
now fairly widespread agreement amongst the political class that a change in
the electoral system for the Commons should require a referendum so as to
14 House of Commons Library: Standard Note: Speakers 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, would
have to consider, first, whether the constitution should mention the electoral
system at all; and secondly, whether there should be some provision that
changes to the electoral system should require all-party agreement and/or a
referendum.
The is and the ought: the role of conventions
The example of the electoral system shows that the enactment of a British
constitution would raise a number of very difficult and inter-related problems.
There is first the difficulty of distinguishing between the constitution as it is and
as we might think it ought to be; then there is the question of identifying what
the constitution in fact is, since much of it is composed of conventions whose
content and scope is at times unclear. Finally, there is the question of who is
to have the authority to identify what the constitution isshould there be a
Royal Commission or a specially convened constitutional conventionand, if
the latter, should it be appointed or electedor could the task be entrusted to
a parliamentary body?
The Institute for Public Policy Research draft constitution did not pretend to
be a codification of Britains current arrangements, but a reformed constitution
outlining what its authors regarded as desirable political arrangements. By
contrast, the constitution drawn up by the students in our Oxford seminar and
published by the Smith Institute and the Political Quarterly was intended to be
a codification of current arrangements. We sought to avoid political debate on
the right electoral system for the House of Commons, the future of the House
of Lords, etc. Ministers, when they argue that there is a case for a constitution
are also, presumably, proposing a consolidation of current arrangements, rather
than a wholly reformed system of government.
But the distinction between what the constitution is and what it ought
to be is by no means as clear as may appear at first sight. The problem is
essentially that of deciding whether the constitution should enact the strictly
legal position, a bare framework, compounded of statute law and the royal
prerogative and presiding with a supposititious dignity over the real world of
flesh and blood, a solution which de Smith characterised as one of voluntary
schizophrenia15 ; or whether, by contrast, it should spell out in detail actual
constitutional practice, which would mean taking into account the conventions
of the constitution. For the fundamental reason why it is not as easy as it may
seem at first sight to distinguish between what the rules are and what they
ought to be, is that the rules in many cases are based on conventions, and not
on statute or judicial precedent. In a country such as the United States, with
a 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 this
book provides an excellent account of the arguments for and against incorporating conventions into
the constitution.
by contrast, when it is alleged that some action is unconstitutional, what is

usually meant is not that the action is contrary to the law in the strict sense
but that it is contrary to convention. Every constitution is likely to be based
to some extent on convention as well as law. But conventions are likely to
play a far larger and more prominent role in an uncodified constitution which
is the product of a long period of evolution. There are likely to be fewer
conventions in a country such as Israel, which, like Britain lacks a codified
constitution, but is currently seeking to bring together its Basic Laws so as to
enact one. For Israel did not begin as a state until 1948, and her history is not
long 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, for
example, with the German Basic Law in 1949, the problem of course does not
exist.
The existence of conventions raises two fundamental problemsfirst how
are they are to be identified, and distinguished from mere practices or
usages; and secondly, which, if any conventions, ought to be included in the
constitution?
One authority has argued that by their very nature, it is impossible to identify
conventions with any degree of precision. It is . . . very difficult to draw the
line between an obligatory and a non-obligatory practice. The characteristic of
conventions, namely that they supplement the laws which are enforced by the
courts would seem to preclude their precise definition.16 If this were true,
then it would be difficult for the constitution to contain a precise statement
of, for example, the powers of the Queen. In fact, however, conventions
in other areas have been crystallised in recent years in the form of codes of
practice for civil servants, ministers and MPs. It seems implausible to suggest,
therefore, that conventions are inherently incapable of being identified and
stated. Indeed, the courts have often recognised the existence of conventions.
In Canada, the Supreme Court in Reference re Amendment of the Constitution
of Canada (1981), went even further than merely recognising a convention.
It proceeded, for the first time in a common law jurisdiction, to adjudicate a
dispute as to whether a past practicethat of securing provincial consent to
constitutional amendments affecting the powers of the provincesamounted
to a convention or was merely a usage.17
In Australia, where the incorporation of conventions governing the role of
the Queen and the Governor-General had first been suggested by Evatt, an
appointed committee, confusingly called a Convention, composed of delegates
from the Commonwealth and State governments representing all of the major
parties, sought to identify the conventions of the Australian constitution. In
1985, its report set out a list of 34 conventions governing such matters as the
relationships between the Prime Minister, Governor-General and the House
of Representatives. Its report was prefaced by the following statement: This
16
E.C.S. Wade, Introduction to the 10th edn of Diceys Law of the Constitution, p.clv.
(1982) 125 D.L.R. (3d.) 1. See Hogg, Constitutional Law of Canada, pp.126. The Supreme Court
decided by a majority vote that the practice amounted to a convention but was not legally binding.
17
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Convention recognizes and declares that the following principles and practices
shall be observed as conventions in Australia.18
Such an exercise requires us first to distinguish conventional rules from
mere generalisations concerning political behaviour. It is, for example, the
case that, although Bills can be introduced into Parliament by any member
of the House of Commons or Lords, in practice, they have little chance of
reaching 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 clearly
be inappropriate to put it into a constitution. Nor would it be satisfactory to
follow Wheare and define a convention simply as a rule of behaviour accepted
as obligatory by those concerned in the working of the constitution.19 For
political actors can easily be mistaken about what is obligatory. In 1955, for
example, when Sir Anthony Eden, as Prime Minister, wished to appoint Lord
Salisbury as Foreign Secretary, he was deterred by the supposed convention
that the Foreign Secretary must be in the House of Commons.20 In 1960,
however, Harold Macmillan succeeded in appointing as Foreign Secretary
from the Lords, Lord Home, and Margaret Thatcher followed this precedent
in 1979 when she appointed Lord Carrington. Therefore, what Sir Anthony
Eden and others in political circles regarded as a convention turned out not to
be a convention at all. If conventions are, as one authority has suggested, part
of the critical morality21 of the constitution, then discovering what they are
cannot be an investigation of a historical or sociological kind, but inevitably
raises normative issues.
There is a need, therefore, to distinguish, as the Supreme Court in Canada
did, between a convention and a mere usage. But, once conventions have been
identified, we need to consider the extent to which they should be embodied
in the constitution. It would surely be mistaken to say nothing more about the
legislative role of the head of state than that the Queen-in-Parliament enacts
law. 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 to
legislation presented by the government, although some disagreement may
arise when it comes to specifying the precise circumstances under which the
Sovereign need not assent to legislation. Would George V, for example, have
been acting constitutionally had he refused to assent to the Government of
Ireland Bill of 1914 providing for a Home Rule parliament for Ireland? He
certainly 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 Sampford
and D. Wood, Codification of Constitutional Conventions in Australia [1987] P.L. 239240. See
also C. Sampford, Recognise and Declare. An Australian Experiment in Certifying Constitutional
Conventions (1987) 7 O.J.L.S. 369417; 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 the
United Kingdom.
the stature of Dicey and Anson agreed with him. Indeed, Anson, author of
the standard work, The Law and Custom of the Constitution, wrote to The
Times in September 1913 justifying the use of the royal veto.22 It might,
nevertheless, be agreed that a provision that the Sovereign normally assents to
the legislation should be inserted into the constitution. Other matters relating
to the powers of the head of state might be more difficult to resolve: under
what circumstances, for example, is the Queen entitled to refuse a request for a
dissolutionan issue which could assume considerable significance in the case
of a hung parliament, even more so were a proportional system to be adopted
for elections to the Commons in which case almost every parliament would
probably be hung.
What about conventions in other areas? It would, declares Jennings, be a
singular constitutional law which mentions the Cabinet because it is referred to
in 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 the
constitution enact the Sewel convention, that Parliament does not normally
legislate with regard to devolved matters in Scotland without the consent of
the Scottish Parliament?24 Should the precise powers of the House of Lords
be specified? What are these powers? In law, the answer is clear. The Lords
have powers only over non-money Bills, which they can delay for just one
session, and over a Bill to prolong the life of Parliament on which they retain
an absolute veto. They also have absolute power to reject secondary legislation,
since the Parliament Acts apply only to primary legislation, secondary legislation
being minimal at the time of the 1911 Parliament Act. Few, however, would
accept as a sensible statement of the constitutional position that the Lords enjoy
an absolute power to reject secondary legislation. For the powers of the House
of Lords are limited not only by statute but by convention.
The Salisbury convention, formulated as a compact between the
Conservative and Labour parties in 1945, the first occasion since the 1911
Parliament Act when the then Conservative-dominated House of Lords faced
a majority government of the left, provides that the Lords does not oppose
measures included in the governing partys manifesto on second or third
reading.25 By convention, also, the Lords do not normally reject secondary
legislation. Thus, it may seem that, just as the section on the head of state
should include the conventional rule that the Queen does not normally reject
legislation presented to her by her government, the section on the House of
Lords should also include the conventional rules as well as the legal rules.
It would, however, be difficult to enact the Salisbury convention in a
constitution for two reasons. The first is that its provisions are bound to be
highly flexible and therefore unenforceable. That indeed was the conclusion
22 See Vernon Bogdanor, The Monarchy and the Constitution (Oxford University Press, 1995),
pp.122135. Ansons letter is reprinted in I. Jennings, Cabinet Government, 3rd edn (Cambridge
University Press, 1959), p.541.
23 I. Jennings, The Law and the Constitution, 5th edn (University of London Press, 1959), pp.7071.
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 consider

the practicality of codifying the various conventions affecting the relationships
between the two Houses, including the Salisbury convention. Its report,
Conventions of the UK Parliament,26 contains valuable material on the difficulties
of precisely defining the conventions regulating the Lords. The Committee
declared27 that the convention had evolved since 1945 and should now be
called the Government Bill Convention. It also declared28 that the Lords
should not reject secondary legislation other than in exceptional circumstances.
It declined, however, to define what these circumstances might be. The
Committee concluded that:
All recommendations for the formulation or codification of conventions
are subject to the current understanding that conventions as such are
flexible and unenforceable, particularly in the self-regulating environment
of 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 political
controversy. It was accepted with little questioning until the House of Lords
Act of 1999, but some now argue that this Act removes the basis upon which
the convention was based. For the Act provided that all but 92 of the hereditary
peers 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 grouping
in the Lords, although without an overall majority. Indeed, a new convention
seems to have been developed according to which no single political grouping
should ever again enjoy an overall majority in the Lords.
As a result of these developments, Liberal Democrats now claim that
the convention, to which the Liberals were not a party, served to regulate
relationships 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 new
convention more appropriate to modern times. The Salisbury convention,
Lord McNally, the leader of the Liberal Democrats in the Lords, argued in a
debate in the Lords on January 26, 2005, was designed to protect the nonConservative government from being blocked by a built-in hereditary-based
majority in the Lords. It was not designed to provide more power for what
the late Lord Hailsham rightly warned was an elective dictatorship in another
place against legitimate check and balance by this second Chamber.30 In a
later debate, he declared I do not believe that a convention drawn up 60
years ago on relations between a wholly hereditary Conservative-dominated
House and a Labour Government who had 48 per cent of the vote should
apply 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.

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).
27
The government, by contrast, argues that the Salisbury convention should still
be observed. For the rationale of the Salisbury convention, in its view, lies
in the House of Lords being non-elected, not merely in its being a chamber
permanently dominated by one party.
It is therefore not always clear whether there is a convention in a particular
area nor what obligations it entails. One example, which greatly exercised
the students in our Oxford seminar, was whether the vote in the House of
Commons on March 18, 2003 before the Iraq war created a convention so
that in future a government would be acting unconstitutionally if it sought to
deploy troops without a parliamentary vote. During the debate before the vote,
Jack Straw, the Foreign Secretary, had declared that it was constitutionally
proper in a modern democracy for the government to seek explicit support
of the House of Commons for military action.32 The students, after some
discussion, 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 convention
exists or what its scope might be is to enact, by contrast with the section on
the head of state, only the legal rule, leaving the precise specification of the
convention to be fought over by the politicians. But this might not be wholly
satisfactory. For, in the case of the House of Lords, if only the legal rule were
enacted, this might seem to legitimise the arguments of those who, like Lord
McNally, believe that the Lords should no longer be bound by the Salisbury
convention. That would allow the Lords, acting within its legal powers, to
render the last year of a governments life a nullity from the legislative point
of view. Moreover, a constitution which failed to contain the convention that
the Lords do not normally reject subordinate legislation could legitimise this
weapon too, and that would be an even more serious incursion upon the
prerogatives of the government of the day. Yet, were the non-elected Lords
to persist in rejecting government legislation, they would almost certainly be
accused of acting unconstitutionally. It would hardly be satisfactory to reply
by referring to a document which contained merely the legal rule. If the
conventions relating to the Lords were to be excluded, an enacted constitution
would do little to clarify the precise role of the upper house.
Conventions, therefore, may be very general and their proper interpretation
is by no means always obvious. It may be objected that the same is often true
of statutory rules; these, however, can be interpreted by the courts. There is,
by contrast with the Canadian experience, no similar umpire in the case of
conventions in the United Kingdom. Where the interpretation of a convention
is unclear, its resolution tends to depend upon political developments rather
than the judgment of the courts. Use of the personal prerogatives by the head
of state, for example, has been greatly limited by the development of a two
party system, which has meant that the Queen has not been called upon to
use her discretion as to who to appoint as Prime Minister nor whether to
accept 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 case
of a hung parliament where the answers would no longer be obvious; while,
if the Commons came to be elected by proportional representation, every
parliament would probably be hung since no government has achieved 50
per cent of the vote since 1935. This could significantly alter the role of the
Queen.33
An enacted constitution which codifies conventions might seem to entail
a considerable juridification of constitutional arrangements. What in the past
was essentially political might now become a question of constitutional law.
It would in theory be for the courts to decide how conventions should be
interpreted. They would no longer be dependent upon political vicissitudes, but
might become justiciable. But this raises very large problems. Could the courts
really decide, for example, what the principle of ministerial responsibility
entails? Would this involve them laying down precise rules as to what
information ministers ought to disclose to Parliament, and the circumstances
under which ministers ought to resign following administrative fault? If so,
the courts would come to play a far more central role in the political process
than they have ever performed hitherto. The courts, however, faced with
such questions, would almost certainly resist being brought into the political
process, and would probably adopt the political questions doctrine that the
US Supreme Court has often, though not invariably, adopted when faced with
issues relating to the doctrine of the separation of powers. The German courts
too have adopted a broadly similar doctrine of judicial restraint.
Conventions, however, may be of very different types. Some may be quite
fundamental, for example, the convention that the government must resign
following defeat in a confidence motion in the House of Commons; the
interpretation of other conventions, for example the convention of individual
ministerial responsibility, although perhaps equally fundamental, may evolve
over time and their interpretation may be more opaque; other conventions,
for example, the convention that members of the royal family do not make
speeches which have party political implications, may be less fundamental and
indicate what is merely inadvisable.34
In a paper submitted to the Australian Constitutional Convention, Cheryl
Saunders and Ewart Smith also distinguished between conventions of different
kinds:
Some conventions might appropriately be included in a written
constitution, subject to enforcement in the courts; others might be
included in the constitution as non-justiciable declarations of principle;
others might be articulated outside the constitution by way of an informal
agreement on the content of which is understood. 35
33
See Vernon Bogdanor, Multi-Party Politics and the Constitution (Cambridge University Press, 1983).
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, Canadian
Constitutional Conventions: The Marriage of Law and Politics, p.151.
34
Unfortunately, they give no indication of which conventions belong to which

category.
What is clear is that only some conventions would be likely to prove both
suitable for enactment and also justiciable. It would, admittedly, be possible to
enact a convention but expressly exclude it from enforcement by action in the
courts; just as the Speakers certification of a money Bill for the purposes of the
Parliament 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 is
certainly 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 the
conventions are to be non-justiciable, what is the precise point of enacting
them? The answer can only be that enactment might help to bring clarity
into what is often a confused area, and therefore offer some assistance in the
resolution of constitutional crises. Nevertheless, the enactment of a constitution
could well lead to a threefold division amongst conventional rulesrules which
are enacted and justiciable, rules which are enacted but non-justiciable, and
rules which are not enacted, but which can nevertheless be authoritatively
stated. In the case, however, of a rule that had been enacted but was
declared non-justiciable, one wonders what authority a court would have for
pronouncing upon it, and what force such a judgment would have, since it
would have no legal consequences.
Moreover, one should not exaggerate the extent to which enacting a
convention would bring clarity. For the convention would have to be stated
in very general terms and its interpretation might still remain a matter of
some controversy. Enacting a constitution would not, moreover, remove
the fundamental difficulty that deciding what is to count as a convention
is, as we have seen from the example of the Salisbury convention, by no
means a purely intellectual or juristic activity, but an essentially political one.
Where there is dispute about whether a particular practice amounts to a
convention, and about precisely what it prescribes, this will not be a purely
intellectual dispute any more than a dispute about the real meaning of
the commerce clause or the equal protection clause in the United States
constitution is an intellectual one; nor will such a dispute be one over a
matter of fact, over whether political actors do actually feel obliged; it will
be a dispute about whether they ought to feel obliged. It will be a dispute
about what terms such as equal protection ought to mean as much as one
about what they do in fact mean. Similarly, a dispute about whether the
Salisbury convention holds or not is more than a merely intellectual dispute,
but in part a dispute about the proper locus of political power. There may
therefore be no wholly satisfactory way of determining who is right in these
disputes, 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 this
reason 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: A
Re-Examination of the Crisis of 1931 (1957) 5 Political Studies 1819.
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no more and no less than what happens.37 Under our peculiar uncodified
system, it will often be the case that where conventions are concerned,
the limits of the constitution tend to coincide with the limits of political
power. Living as we do during a period of some constitutional ferment,
it has become particularly difficult to predict the outcome of what is an
essentially political struggle, and difficult, therefore, to discover a satisfactory
solution to the problem of enacting, for example, the powers of the Lords in
a constitution.
Elaboration, ratification and amendment
The problem of determining how we are to decide which conventions should
be included and how they are to be formulated leads to an even more
fundamental question. Who is to have the authority to decide such matters?
A constitutional document, it might be suggested, cannot be drawn up in the
same way as an ordinary legislative measure. Yet the report of the Australian
Constitutional Convention,38 valuable as it is, raises the question of what
authority such a statement by a committee, however eminent, should enjoy.
In order for it to carry legitimacy, presumably all-party representation on
a constitutional assembly would be required, as was the case in Australia.
Suppose, however, that there was not unanimous agreement on what the
convention is, as with, for example, the Salisbury convention. Would that
prevent it from being regarded as a convention? Would the representatives of
one political party, however small, be able to exercise a veto poweror could
the issue be decided by majority or qualified majority vote? Some conventions
in the Australian report were in fact decided by majority vote. Moreover, how
would conventions come to be changed? The answers are by no means clear.
It would seem that the Australian Convention may have succeeded in creating
a rule of recognition for conventions, but not a rule of change. There would
be some danger of creating an almost unique degree of inflexibility limited to
indeterminacy and ineffectiveness, born of non-justiciability.39
An assembly of the great and the good is by no means the only institutional
method by which proposals for a constitution might be drawn up. In Britain,
one proposal that is currently being considered is that a directly elected
Convention be established. The Liberal Democrats recently proposed that half
of the membership of such a Convention should be chosen by random lot.40
Others have suggested that it should be wholly elected. The danger with
proposals of this kind, of course, is that, since few people find constitutional
issues a matter of pressing concern, turnout for the election would be low, and
the Convention would, in consequence, lack legitimacy.
37
John Griffith, The Political Constitution (1979) 42 M.L.R. 1 at p.19.

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.
38
An alternative suggestion is a representative but non-elected constitutional

Convention analogous to that which met in Scotland from 1989 to 1995.41 This
comprised representatives of the Labour and Liberal Democrat parties, together
with representatives of some of the minor parties, and of the main institutions
of Scottish civil societyfor example, the churches and the trade unions. The
Convention, however, was established to consider just one, fairly specific,
issue, devolution; and it was composed only of supporters of devolution, since
the Conservatives and the SNP refused to take part. Moreover, Scotland is a
more cohesive civic society than England, and it may be easier to achieve a
consensus there, particularly on matters which affect issues involving Scottish
nationality. A constitutional Convention in the country as a whole would have
to deal with a much wider range of issues, and it would be much more difficult
than it was in Scotland to secure accurate representation of the various streams
of opinion. If all parties agreed to be represented on it, the convention might
just replicate the party dogfight at Westminster, and contribute to further
alienation. If any of the opposition parties refused to be represented on it, as
happened in Scotland, the convention might be seen as merely an instrument
of the government in power.
It may be suggested that a popular convention, however chosen, would be
the wrong instrument to present proposals for an enacted constitution, since
few members of the public have formulated precise proposals on this topic.
Guidance would perhaps be needed, and, for this, involvement of the great
and the good would seem inescapable. One way to achieve this while retaining
some popular input would be to initiate a consultation and learning exercise
by means of a Royal Commission. Members of the Commission would be
experts nominated by the government, but no doubt the government would
seek the approval of the main opposition parties for its nominees.
The great advantage of a Commission is precisely that it would be a learning
exercise. It would take written and oral evidence in different parts of the
United Kingdom, and its oral evidence sessions would no doubt be televised,
and would receive considerable publicity in the local as well as the national
media. That would raise the profile of issues connected with democracy and
might encourage people to think about them. Between 1969 and 1973, the
Royal (Kilbrandon) Commission on the Constitution,42 which dealt primarily
with devolution, held evidence sessions in different parts of the country, and
this served to raise the profile of the devolution issue very considerably.
Once a constitution had been drawn up, a procedure would need to be
found for ratification. The preamble to the US Constitution begins We the
people, the implication being that the people of the United States have given
themselves a constitution. The people, however, were consulted neither in the
choice of Founding Fathers nor in the ratification of the constitution which
was done by elected representatives. Similarly, the preamble to the German
41 See Vernon Bogdanor, Devolution in the United Kingdom (Oxford University Press, 1999),
pp.196198 and Kenyon Wright, The People Say Yes: The Making of Scotlands Parliament (Argyll
Publishing, 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, by

virtue of their constituent power, this Basic Law, though that too was ratified
by elected representatives rather than directly by the people. In some countries,
however, France for example, the constitution has been directly ratified by the
people.
The referendum is now an accepted procedure in Britain, although so far
only one nation-wide referendum has been heldon whether Britain should
remain in the European Communitiesin 1975. Nevertheless, a number of
other referendums have been promised, and it is generally accepted that joining
the Eurozone and altering the electoral system for elections to the House of
Commons should be dependent upon approval in referendums. Other matters
are more controversial. At the time of writing, for example, there is some
dispute as to whether the proposed European Treaty should be put to the
people in a referendum. There is, therefore, no general agreement on the
precise role of the referendum. Nevertheless, it would be natural to suggest
that 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 future
it would no longer be sovereign, for it would then be bound by a constitution
which had been enacted not only by itself but also by the people, from whom
it would derive both its powers and also the limitations upon its powers.43
Should amendment of the constitution also be subject to referendum, or
should Parliament alone be able to amend it; and, if Parliament has the sole
power of amendment, should it be able to amend the constitution in the
same manner as it passes other legislation, or should some special procedure be
required, such as explicit repeal or a qualified majority. In the exercise which
we conducted with students in the autumn of 2006, they were required to
consider the method of amendment most appropriate to the constitution as it
now is, not as they might like it to be. They produced three options. The
first 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 the
constitution, which would therefore be treated as if it was just an ordinary
statute. The second was that the constitution could only be amended explicitly
as with the European Communities Act and the Human Rights Act. The third
was that the constitution should be entrenched and could only be amended by
a qualified majority in Parliament and a referendum. The qualified majority
would 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. After
some discussion, the students were asked to decide, by vote, which option
they believed was most in accordance with current practice. They decided by a
narrow margin on the second alternative, express repeal. Thus any amendment
to the constitution would have to be sought expressly through a Constitutional
Amendment Bill. Such a Bill, however, would then be subject to the normal
legislative procedures. Another option might have been to have given the
House 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 arguably
provides a precedent for other legislation enjoying a special constitutional
status.
The students also decided that there should be three further restrictions on
the sovereignty of Parliament. The first was that the courts do not give effect
to any rule of law which is incompatible with directly effective European law.
The second was that a referendum would be required before the establishment
of a directly elected devolved body enjoying legislative or executive power;
the third was that any constitutional amendment seeking to amend or repeal
this particular provision would itself require a referendum before coming into
effect. 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 wordswhat the
Queen in Parliament enacts is law. Yet the prime purpose of enacting a
constitution is to provide for some form of higher law, provisions which
would be more difficult to alter than those of the ordinary law. A constitution,
therefore, would register and give legal effect to the proposition that Parliament
has abdicated its sovereignty.44 In The Law of the Constitution, Dicey dismisses
the:
. . . strange dogma . . . that a sovereign power, such as the Parliament of
the United Kingdom, can never by its own act divest itself of sovereignty.
. . . To argue or imply that because sovereignty is not limitable (which
is true), it cannot be surrendered (which is palpably untrue), involves the
confusion 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 no
man can commit suicide.
The sovereign, Dicey suggests, can divest itself of authority by permanently
transferring part of its authority to another person or body. If, for example,
the 1706 Acts of Union, passed by the English and Scottish Parliaments, had
kept alive the Parliaments of England and Scotland solely for the purpose
of modifying when necessary these Acts, and had conferred upon the new
Parliament of Great Britain, created by the Acts, authority to pass any law
whatever except one modifying, infringing or repealing the Acts of Union,
then the Acts would have been fundamental law unchallengeable legally by
the new Parliament of Great Britain.45
Perhaps interest in enacting a constitution has arisen precisely because it has
come 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 we
have made of it.
45 Dicey, Law of the Constitution, pp.6566. We have modified Diceys wording slightly, since Dicey
writes 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 the
Government of Ireland Act 1920a declaratory clauseclaimed (wrongly,
one may suspect) Westminster would continue to enjoy over Northern Ireland
following the establishment of a Home Rule parliament in the province.46
But the prime reason why it is sometimes suggested that Parliament is no
longer 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 law
within the United Kingdom, and more especially since the decision in
the Factortame case, in which an Act of Parliament was for the first time
disapplied as being in conflict with Community law, some difference
of opinion has existed as to whether the British judiciary has acquiesced
in a legal revolution, abandoning a crucial element in the doctrine of
parliamentary sovereignty.47
The Human Rights Act 1998 and the legislation providing for devolution in
the non-English parts of the United Kingdom do not, by contrast with the
European Communities Act, offer any such formal challenge to the principle
of parliamentary sovereignty. Nevertheless, while preserving parliamentary
sovereignty in form, it may be argued that they have the effect of limiting its
scope in practice. What cannot be doubted is that there is far less confidence
in the applicability and relevance of the principle of parliamentary sovereignty
at the present time than when Dicey wrote, and a debate has begun as to
whether there should be a British Bill of Rights.48 It is because parliamentary
sovereignty is no longer an unchallenged doctrine of the constitution that a
codified constitution has become possible; and it is because there is scepticism
concerning the value of the doctrine that voices have been heard calling
for an enacted constitution. An enacted constitution would, however, have
to confront at the outset the problem of whether or not the European
Communities Act has limited the sovereignty of Parliament, and whether the
practical limitation of sovereignty by the Human Rights Act and the devolution
legislation should be registered in the constitution. An enacted constitution
would 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, no
reason why, almost alone amongst democracies, Britain should be unable to
enact 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.

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. 701719. See also the Justice report, A British Bill of Rights: Informing the Debate, 2007.
47
successfully resolved by other countries seeking to enact a constitution; others,

however, are more specific to Britain, in particular, the problems of enacting a
constitution that has long been uncodified, and of confronting the doctrine of
the sovereignty of Parliament. What cannot be doubted is that the enactment of
a constitution is, to some extent at least, a normative and a political exercise as
well 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 we
began to make these choices. For, we cannot be said to know what our constitution actually is, much less to understand it, until we have attempted to enact it.
58
Public Law
Public-Private Intersection:
Comparing Fiduciary Conflict
Doctrine 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 fiduciary
officer bears to the public official, [fiduciary doctrines] system of review
reflects in a very large measure that described by the late Professor De
Smith in Judicial Review of Administrative Action.1
More recently, Dawn Oliver has argued that various parallels or analogies can
be drawn between the judicial supervision of non-statutory discretions, under
private law doctrines, and that of statutory (and other public) discretions, under
administrative law doctrines. She argues that rules and duties across a wide
range of legal categories form part of a legal framework for the control of
power which is not by any means confined to public law.2 Courts, too,
have drawn such comparisons, explicitly recognising a connection between
the doctrines which allow for review of the exercise of public power and those
governing the review of privately held discretionary powers. In Equitable Life
v Hyman, for example, Lord Woolf M.R. noted marked similarities between
the two discretionary situations3 and many other cases, both in England4 and
* Fellow in Law, Trinity Hall, Cambridge. I am grateful, with the normal disclaimers, to Colin
Campbell, Angus Johnston, Richard Nolan, Mike Taggart, Rebecca Williams and an anonymous
referee 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 and
the Constitution (Oxford: Hart, 2000) p.307, at p.312; see also D. Oliver, Common Values and the
Public-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 Interest
or National Beauty [1998] 2 All E.R. 705 at 715716, 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 regimes
that 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 the
analogy. As Lord Woolf put it, one must be cautious and not draw false
analogies.6 In Abacus Trust v Barr, Lightman J. mentioned the analogy but
noted that there are critical differences between public, or administrative, law
and private law proceedings.7 Some academic commentators have argued
even more forcefully against the analogy. David Hayton, in particular, has
argued that the analogy can be harmful, in that it has the potential to draw
trust law in directions which are undesirable.8
The analogy is an expansive project, seeking to identify similarities between
private law and public law modalities for the control of discretionary power.
One can pursue that agenda on several distinct but inter-related levels of
discourse. First, one can consider a large number of doctrines at a very abstract
level and seek to identify similarities and differences between those doctrines
in general terms. Secondly, one can take individual doctrines from public law
and private law which appear similar in general terms, and conduct a far more
detailed analysis to determine the extent to which those apparent similarities
(at the abstract level) are in fact present in the detail of the doctrines. These
two levels of discourse are, of course, inter-related. Others have already made
a significant contribution to the debate regarding the analogy at the abstract
level of discourse. This article seeks to further discussion of the analogy by
pursuing the second, more detailed, level of discourse.
Within the confines of an article such as this, it is impossible to do justice
to more than one area of comparison. The area that will be addressed is the
comparison indicated in Dawn Olivers observation that the rule that a trustee
must not benefit from the trust provides a parallel with the rule against bias
in judicial review.9 Her writing did not investigate in any further detail that
comparison between bias law and fiduciary conflict doctrine. This article offers
a detailed exploration into whether these two apparently similar doctrines are
at 628630; Equitable Life Assurance Society v Hyman [2002] 1 A.C. 408 at 460. See also Lord Walkers
extra-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 Nominees
Ltd [1996] P.L.R. 317 at [102]; Minister for Immigration v Esehtu (1999) 197 C.L.R. 611 at 649; Hot
Holdings Pty Ltd v Creasy [2002] HCA 51, (2002) 210 C.L.R. 438 at [135]; Wong v Burt [2003] 3
N.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 Ex
p. 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 & Marshalls Commentary and Cases on the Law of Trusts and
Equitable 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 the
Constitution (Oxford: Hart, 2000) p.307 at p.310 (see also p.313); Oliver, Common Values, (1999), at
pp.193 and 196.
60
Public Law
in fact comparable in terms of the way they reach results and the purposes they
serve. The relevance of this endeavour is that if essential differences between
the doctrines are identified in these respects, then any attempt to analogise from
one to the other would be radically misconceived. On the other hand, if the
two doctrines are found to be comparable in doctrinal terms, then it would not
be misconceived to attempt to draw analogies between them. That conclusion
can only be justified after detailed consideration of the two doctrines, and it
is that conclusion which this article seeks to defend. It is perhaps important to
emphasise that it is not being suggested that this means such analogies should be
drawn. Such an argument ought only to be advanced after further consideration
of the broader contexts in which each doctrine operates,10 and of whether
those contexts militate in favour of, or against, analogies being drawn. In particular, more empirical consideration of the types of interests and relationships
which trigger application of each doctrine would be required in order to be
confident that the doctrinal similarities were more than merely coincidental
and that the development of one or other doctrine by analogy would not lose
sight of the context within which that doctrine operates. Similarly, it would be
important to identify, if possible, why public officials and fiduciaries are being
regulated in a comparable manner. Developing a contextual comparison of
the doctrines requires a detailed empirical analysis of hundreds of cases, given
the courts consider it dangerous and futile to define or list the factors which
may or may not give rise to a real danger of bias. Everything will depend on
the facts,11 just as it does in fiduciary conflict cases.12 Such a study would
be highly beneficial but is far beyond the scope of this article. Furthermore,
detailed consideration of several (rather than merely two) doctrines governing
public officials and fiduciaries would be appropriate in order to understand on
a broader plane the similarities and differences between the public and private
law regimes. These extended studies are not possible within the confines of
this article. Its purpose is the more modest one of arguing that such further
investigation is worthwhile and not radically misconceived.
The analysis offered is, therefore, relevant to the theoretical discourse regarding the boundary between public and private law. However, it also has practical
relevance. In particular, rather than merely noting similarities and differences
between public and private law as they currently exist, which appears largely
to have been Dawn Olivers concern,13 some have sought to use the suggested
analogy 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 Administrative
Discretion: A Unified Analysis (2005) 68 M.L.R. 554 at pp.556557, 565, 586, 589, 593; Town
Investments Ltd v Department of the Environment [1978] A.C. 359 at 397; Kinloch v Secretary of State for
India 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 Scott
v National Trust that legitimate expectation may have some part to play in
trust law as well as in judicial review cases14 would involve an extension of
trust law principles on the basis of an analogy with public law. And in Collinge
v Kyd, Paterson J. drew analogies with bias law when determining whether
a trustees conflicting interest was sufficiently material to invoke the fiduciary
conflict principle.15 Analogical reasoning proceeds by reference to similarity
and difference,16 and it is, of course, difficult to determine which similarities
or differences are relevant or significant.17 However, analogical reasoning
focuses on particulars.18 If analogies between doctrines are to be relied upon
to develop the law, or even simply to support a particular application of one
doctrine on the basis that the application coheres with the other doctrine, those
analogies ought only to be pursued following rigorous and detailed consideration of the doctrines involved, in order to determine whether the doctrines
are sufficiently similar to justify reliance on the analogy, and consideration of
the question whether the context within which each doctrine operates either
supports or weakens the case for the analogy. This article begins the process of
providing that detailed doctrinal analysis.
Basis for the analogy
Before proceeding to analyse in detail the extent to which fiduciary conflict
doctrine and bias law are, or are not, analogous, it is worthwhile first setting
out clearly what each doctrine entails. Bias law disqualifies an arbiter from
being involved in proceedings in which he or she is a party: nemo iudex in
sua causa.19 This prohibition is not to be confined to a cause in which [the
decision-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 the
outcome, but also any situation where the decision-maker can be said to have
an interest in the outcome of the proceedings.21 Furthermore, even where the
decision-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 is
whether the fair-minded and informed observer, having considered the facts,
14
Scott v National Trust, [1998] 2 All E.R. 705 at 718.

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.12;
W. Lucy, Understanding and Explaining Adjudication (Oxford: OUP, 1999), p.376; M.D.A. Freeman,
Lloyds Introduction to Jurisprudence, 7th edn (London: Sweet & Maxwell, 2001), p.1409.
17 C. Sunstein, Analogical Reasoning (1993) 106 Harvard Law Review 741 at pp.745746; J.
White, Analogical Reasoning in D. Patterson, ed., A Companion to Philosophy of Law and Legal Theory
(Cambridge: Blackwell, 1996), p.583, at pp.584586.
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
132133, 135, 137; Roylance v General Medical Council (No.2) [2000] 1 A.C. 311 at 318, PC.
15
62
Public Law
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 expressly
provided, entitled to make a profit; he is not allowed to put himself in a
position where his interest and his duty conflict.23
More recent decisions also make clear that a fiduciary acts in breach of the
fiduciary conflict doctrine where he or she, acts for two principals with
potentially conflicting interests without the informed consent of both.24
At a superficial level, it is relatively easy to illustrate a connection between
these two doctrines. First, the cases concerning fiduciary conflict doctrine
contain plentiful references to the problem with such conflicts being that
the fiduciary is prevented from bringing an independent and impartial
mind to the performance of his or her fiduciary office. For example, in
Guinness v Saunders, a company director was a member of a committee which
authorised the payment of a success fee to the director in respect of a takeover
bid for another company. The authorisation was invalid, as the companys
articles enabled only the board of directors (and not a mere committee) to
authorise such payments. The House of Lords rejected all of the directors
other attempts to justify the payment as the director should never have been
involved in making a decision about his own remuneration because by doing
so he debarred himself from giving impartial and independent advice25 to
the company. Similarly, in McPherson v Watt, Lord Blackburn referred to the
right of a client to receive disinterested advice from his attorney as the reason
why an attorney cannot purchase his clients property.26 In Andrews v Ramsay,
Lord Alverstone C.J. quoted a passage from Story on Agency concerning the
impermissibility of an agent acting so as to bind his principal where the agent has
an 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 for
the Home Department [2005] UKHL 13; [2005] 1 W.L.R. 688 at [30]; Gillies v Secretary of State for Work
and Pensions [2006] UKHL 2; [2006] 1 W.L.R. 781 at [3], [38]; R. (on the application of Paul) v Deputy
Coroner of the Queens Household [2007] EWHC 408 (Admin); [2007] 2 All E.R. 509 at [65]. This is
a modest adjustment of the test proposed by Lord Goff of Chieveley inGough, [1993] A.C. 646 at
668, which in turn was based upon Blackburn J.s observations in R. v Rand (1866) L.R. 1 Q.B. 230
at 232233. Arguably, lower courts may have tended back towards Gough in their application of the
bias rule since Porter v Magill (S. Attrill, Who is the Fair-Minded and Informed Observer? Bias after
Magill [2003] C.L.J. 279 at pp.280281; M. Taggart, Administrative Law [2003] New Zealand Law
Review 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 herethe importance of the adjustment made in Porter v
Magill was not to alter the threshold for disqualifying bias but rather to emphasise that public perception
of the possibility of unconscious bias is the key: Lawal v Northern Spirit, above, at [14] (emphasis
added); see also Webb v R. (1994) 181 C.L.R. 41 at 5152; 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, Fisher
J. referred to the task of investment advisers, who conceded that they owed
fiduciary 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 these
descriptions of fiduciary conflict doctrine is apparent when one bears in mind
that 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 fiduciary
conflicts cases which refer directly to bias as a motivating concern underlying
fiduciary conflict doctrine. For example, in Parker v McKenna, Lord Cairns
L.C. criticised directors of a company who bought newly issued shares in the
company from the underwriter of the issue on the basis that their purchase of the
shares then made it utterly impossible for [them] to exercise an independent
and unbiassed judgment31 with respect to the relaxation of the terms on
which the shares were issued. In Guinness v Saunders, which has already been
mentioned, Lord Templeman also referred to the directors conduct as bringing
about a situation where his advice to the company was suspect and biased.32
In Movitex v Bulfield, Vinelott J. described the fiduciary conflict principle as
entitling a company to the benefit of the unbiased judgment33 of every one
of its directors. And, in Pilmer v Duke Group, Kirby J.s dissenting judgment
referred to the plaintiff companys dependence on its advisers independent
judgment and its vulnerability to the advisers biased opinion as relevant
considerations in determining whether the fiduciary conflict doctrine was
applicable.34
Secondly, comments made in the context of bias law indicate that conflicting
interests are part of its motivating concern. For example, in Ebner v Official
Trustee, a majority of the High Court of Australia referred to financial
conflicts of interest35 and economic conflicts of interest36 as being of
particular significance in identifying impermissible bias.
Thirdly, the connection between fiduciary conflict doctrine and bias law is
reinforced by Megarry J.s decision in Spector v Ageda.37 Discussing the problems
which arise where a fiduciary, such as a solicitor, is personally involved in a
transaction with his client, Megarry J. observed that:
27
Andrews v Ramsay & Co [1903] 2 K.B. 635 at 637.

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 Alconbury
Developments 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, Due
Process and Fair Procedures (Oxford: OUP, 1996), pp.438440.
31
Parker v McKenna (1874) L.R. 10 Ch.App. 96 at 118.
32 Guinness v Saunders [1990] 2 A.C. 663 at 694695.
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.
28
64
Public Law
. . . [T]he solicitor must be remarkable indeed if he can feel assured

of holding the scales evenly between himself and his client. Even if in
fact he can and does, to demonstrate to conviction that he has done so
will usually be beyond possibility in a case where anything to his clients
detriment has occurred. Not only must his duty be discharged, but it must
manifestly and undoubtedly be seen to have been discharged.38
The notion that fiduciary conflict doctrine is designed to ensure that the
fiduciarys duty to his client is not only discharged but is manifestly and
undoubtedly seen to have been discharged is distinctly reminiscent of Lord
Hewart 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 importance
that justice should not only be done, but should manifestly and
undoubtedly be seen to be done.39
The similarity of the language involved in each of these two quotations makes
it hard to believe that Megarry J. did not have Lord Hewarts words in mind
when writing his judgment in Spector v Ageda. It is now clear that, while the
integrity of the principle mentioned by Lord Hewart in Sussex Justices is to be
fully maintained, it is not to be treated as a test per se for determining when
a bias objection has been made out.40 However, its importance for present
purposes lies in the evidence it provides of apparent cross-fertilisation between
the private law doctrine concerning fiduciary conflicts and the public law
doctrine concerning bias. In other words, all of the dicta referred to in this
section of the article suggest some degree of analogy between bias law and
fiduciary conflict doctrine.
Evaluating the analogy
However, if the analogy between fiduciary conflict doctrine and bias law is
to be understood properly, and to be assessed, one cannot simply halt the
analysis at the point where some degree of similarity or cross-fertilisation
appears. Lord Woolf41 and Dawn Oliver42 both opine that the similarities
between the doctrines are explained by the involvement of Lord Greene
M.R., a distinguished Chancery lawyer, in the development of administrative
law, particularly in his decision in Wednesbury.43 While Lord Greenes
pedigree as a Chancery lawyer is undoubted,44 it is not clear that Lord
38
[1973] Ch. 30 at 47.

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 5152; Gough, [1993] A.C. 646 at 663664,
673; H. Woolf, J. Jowell and A.P. Le Sueur, de Smith, Woolf & Jowells 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
39
Greenes involvement provides the soundest historical explanation for the

apparent similarities between the two doctrines. It is clear that each of the
two doctrines under consideration dates back much farther than that. It is
possible that some connection might be found in the fact that fiduciary
conflict doctrine began to solidify into its modern form around the time
of Lord Eldons period as Lord Chancellor, which was also the period in
which the courts began to give effect to the notion of a public trust,45
also under Lord Eldons leadership. Alternatively, an explanation might be
found even earlier in the connection between Lord King L.C.s decision
in Keech v Sandford,46 preventing a trustee from taking a renewal of the
trusts lease for himself, and an apparent concern on Lord Kings part to
prevent the taking of profit from public office, although that too remains
unclear.47
Without any clear historical explanation for the apparent analogy, it is
necessary to go further and to evaluate in detail the degree to which the
analogy holds. That is the purpose of this section of the article. It proceeds
by considering three areas in which similarities or differences might be found
between the two doctrines: first, in the methodologies adopted; secondly,
in the underlying rationale of each doctrine; and finally, in the remedial
considerations applicable in the context of each doctrine. These three topics
are undoubtedly interconnected, as one would expect: it would be odd if
a doctrines methodologies and remedies were not related to its underlying
rationale. Nonetheless, it is helpful to separate out discussion of the three
topics in order to obtain a sharper understanding of the precise similarities and
differences between the two doctrines.
Methodologies
There are a number of areas in which the methodologies applied within
fiduciary conflict doctrine and within bias law exhibit considerable similarities.
First, both doctrines are acutely aware of the difficulties of proving the effects
of bias and conflicts respectively, and their methodologies respond to those
difficulties. In the bias context, for example, it is unnecessary to prove actual
bias on the part of the decision-maker,48 and cases involving its proof are
exceedingly rare:
. . . [T]he concept [of bias] requires not only that the tribunal must be
truly independent and free from actual bias, proof of which is likely to
be very difficult, but also that it must not appear in the objective sense to
lack 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].
66
Public Law
Thus, where the allegation of bias is based on the decision-maker having an

interest in the outcome of the matter under consideration, it is irrelevant that
the decision-maker may not have been affected in any way by that interest:
the mere fact of [the decision-makers] interest is sufficient to disqualify him
unless he has made sufficient disclosure.50 Thus, Lord Cottenham L.C.s
interest in one of the parties in Dimes was sufficient reason to set aside his
decision, even though the House of Lords considered that no one could
suppose that he had actually been influenced by that interest in reaching his
decision.51 Similarly, where the allegation is based not on an interest in the
proceedings but on a real possibility of bias based on other considerations,
the mere appearance of bias again suffices (such as where an arbiters
conduct, whether during the hearing52 or prior to the hearing,53 suggests
the possibility of prejudgment or prejudice against a party; or where close
personal friendships and acquaintances,54 or animosities,55 between an arbiter
and someone involved in the decision-making process raise that possibility).
Bias law focuses its attention on the appearance of bias because of the
difficulties in most situations of knowing whether there is real bias56 and
the difficulty in establishing whether that bias had any adverse effect on the
outcome of the matter under consideration.57
The insidious nature of bias makes its identification elusive. The law does what
it can by recognising that bias may be apparent as well as actual. Thus
proof of an appearance of bias may be as fatal as proof of a state of mind
which is actually partial.58
50
Pinochet [2000] 1 A.C. 119 at 133.

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 North
Glamorgan 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 Teachers Appeals Tribunal [2006] UKPC
59, 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 allegation
of bias based on the appearance of prejudice in that both indicate a lack of impartiality. An interest
in the outcome of the case or an indication of prejudice against a party to the case or his associates
will, of course, be a ground for concluding that there was a real possibility that the tribunal or one of
its members was biased: Davidson [2004] UKHL 34; (2005) 1 S.C. (HL) 7 at [47]. In Australia, the
conceptual link has been taken to its logical conclusion, that the real possibility of bias test will suffice
on its own to identify all relevant cases of bias without needing a separate rule which automatically
disqualifies 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. 438
at [69]. England currently retains the automatic disqualification rule (see Gough [1993] A.C. 646 at 661;
51
Difficulties of proof have also been important in the development of fiduciary

conflict doctrine. For example, it is often observed that fiduciary conflict
doctrine involves a strict prophylactic approach to prevent a wrong which
may enrich the defendant or harm the claimant,59 with the result that
the doctrine applies even if it is clear that the fiduciary acted honestly and
could 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 which
he held on trust, despite the fact that there was evidence that the landlord
had refused to renew the lease for the benefit of the trust. Further examples
can be found in the fact that fiduciary doctrine considers it irrelevant that the
fiduciary may have acted honestly, and will not inquire into that fact,61 and
in the fact that it is similarly irrelevant that the fiduciarys action may actually
have benefited his or her beneficiaries; the fairness of the transaction is not
examined.62 The justification for this approach lies in the difficulty in proving
such matters.63 As Lord Eldon L.C. explained, the fiduciary conflict doctrine
stands much more upon general principle than upon the circumstances of any
individual case64 on the basis that:
. . . [T]hough you may see in a particular case, that [the trustee] has
not made advantage, it is utterly impossible to examine upon satisfactory
evidence in the power of the Court, by which I mean, in the power of
Pinochet [2000] 1 A.C. 119 at 132133, 137, 140141; Roylance [2000] 1 A.C. 311 at 318), but even
that apparently absolute rule can be departed from provided the potential effect of any decision on the
judges 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-based
bias and the reasonable apprehension of bias, see Meadowvale Stud Farm Ltd v Stratford CC [1979] 1
N.Z.L.R. 342 at 348; Webb (1994) 181 C.L.R. 41 at 7475; 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: The
Case Against Automatic Disqualification [2000] P.L. 456 at p.473; M. Allars, Citizenship Theory
and 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. 337
at [159]; V. Brudney, Contract and Fiduciary Duty in Corporate Law (1997) 38 Boston College Law
Review 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 Bloyes Trusts (1849)
1 Mac. & G. 488 at 491492; Aberdeen Railway (1854) 1 Macq. 461 at 472; Parker (1874) L.R. 10
Ch.App. 96 at 124125; De Bussche (1878) 8 Ch.D. 286 at 316; Wright v Morgan [1926] A.C. 788 at
798, PC; Regal (Hastings) Ltd v Gulliver [1967] 2 A.C. 134 at 153; Boardman v Phipps [1967] 2 A.C. 46
at 129; Canadian Aero Service Ltd v OMalley [1974] S.C.R. 592 at 608610; 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 made

advantage, 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 knowledge
possible, to enable him to sell to the utmost advantage for the cestui que
trust, [but] the question, what knowledge he has obtained, and whether
he 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 Court
can discuss with competent sufficiency or safety to the parties.66
A second methodological similarity, related to the first, can be identified
in 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 informed
observer, having considered the facts, would conclude that there was a
real possibility67 that the decision-maker was biased. The very same
language is used in fiduciary conflict doctrine when determining whether
the fiduciarys personal interest conflicts with her duty to the principal: for
example, in Aberdeen Railway v Blaikie, Lord Cranworth L.C. noted that no
one, having [fiduciary] duties to discharge, shall be allowed to enter into
engagements in which he has, or can have, a personal interest conflicting, or
which possibly may conflict, with the interests of those whom he is bound to
protect.68 Expanding on this, Lord Upjohn explained in Boardman v Phipps
that:
The phrase possibly may conflict requires consideration. In my view
it means that the reasonable man looking at the relevant facts and
circumstances of the particular case would think that there was a real
sensible possibility of conflict; not that you could imagine some situation
arising which might, in some conceivable possibility in events not
contemplated as real sensible possibilities by any reasonable person, result
in a conflict.69
65
Lacey (1802) 6 Ves. 625 at 627; see also Bennett (1805) 10 Ves. 381 at 385386.
James (1803) 8 Ves. 337 at 348349.
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 of
the doctrine: Industrial Development Consultants Ltd v Cooley [1972] 1 W.L.R. 442 at 450451; 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 Ltd
v Pyke [2004] EWHC 1815 (Ch); [2005] 1 B.C.L.C. 245 at [55]; Foster Bryant [2007] EWCA Civ
200, [2007] Bus. L.R. 1565 at [52]; R.P. Meagher, J.D. Heydon and M.J. Leeming, Meagher, Gummow
and Lehanes Equity: Doctrines and Remedies, 4th edn (Chatswood: Butterworths, 2002), para.5-065; J.A.
McGhee (ed.), Snells Equity, 31st edn (London: Thomson, 2005), para.7-25; P. Pettit, Equity and the
Law of Trusts, 10th edn (Oxford: OUP, 2006), p.442.
66
The similarity with bias law is clear, both in terms of the language employed and
the methodologies that the language reflects: in both cases a real possibility70
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 that
would otherwise be caught by the conflict principle provided the fiduciarys
principal consents to the fiduciary so acting.71 Similarly, a decision-maker is
not disqualified from acting, even where a fair-minded and informed observer
might consider there was a real possibility that the decision-maker was biased,
provided the parties to the proceedings have consented to the decision-maker
continuing to act.72 In each case the waiver or consent must be made with the
benefit of full information. In the context of bias law, the decision-maker is
expected to make sufficient disclosure73 of any interest in the proceedings:
as Lord Woolf C.J. put it, [i]f disclosure is made, then full disclosure must
be made.74 Here, disclosure is not an obligation,75 but rather a mechanism
for obtaining insulation against the effects of bias laws disqualification rule.
Similarly, it is clear that a fiduciary can only avoid fiduciary conflict doctrines
disqualification if he obtains his principals fully informed consent by making
full and frank disclosure of all facts material to the conflict.76 Again, it
has been said that such disclosure is not an obligation: it is an answer
to circumstances which otherwise indicate disloyalty, not a mainspring of
equitable liability.77
There are substantial similarities, therefore, in the methodologies employed
in bias law and fiduciary conflict doctrine. However, it remains to consider
whether the two doctrines can be considered analogous in terms of their
respective rationales and remedies.
70 For bias law see, e.g. Porter [2001] UKHL 67; [2002] 2 A.C. 357 at [103]; Lawal [2003] UKHL
35; [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 Revenue
Commissioners [1965] A.C. 244 at 263, 265, 266, 267; Boardman [1967] 2 A.C. 46 at 109; Queensland
Mines (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 769770; New
Zealand Netherlands Society Oranje Inc v Kuys [1973] 1 W.L.R. 1126 at 1132, PC; Imperial Mercantile
Credit Association v Coleman (1873) L.R. 6 H.L. 189 at 200, 205; Dunne v English (1874) L.R. 18 Eq.
524 at 533535; 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] 1
B.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] VSC
131 at [24][25]; Shepherds Investments Ltd v Walters [2006] EWHC 836 (Ch); [2007] 2 B.C.L.C. 202
at [132]; although cf. M. Conaglen, Equitable Compensation for Breach of Fiduciary Dealing Rules
(2003) 119 L.Q.R. 246.
70
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Rationales
In order to compare the rationales of fiduciary conflict doctrine and bias law
it is necessary first to identify those rationales. It will be suggested that, when
this is done, there are distinct similarities between the two rationales, although
the similarities may not be as great as first appears from the superficial linguistic
parallels between the two doctrines.
Notwithstanding some suggestions in the case law that fiduciary conflict
doctrine has some moralistic purpose, to hold fiduciaries to something stricter
than the morals of the market place,78 the more compelling view of fiduciary
conflict doctrines rationale is that it is far more instrumentalist in its outlook.
Its purpose is to provide a subsidiary and prophylactic form of protection for
non-fiduciary duties which enhances the chance that those non-fiduciary duties
will be properly performed.79 The primary means by which this protective
function is given effect is by seeking to insulate fiduciaries from influences that
are likely to distract them from such proper performance. Where a fiduciary
acts with a conflict between his personal interest and the duty that he owes
to his principal, there is a risk that the fiduciarys personal interest will tempt
him away from performing his duty properly. It is at that temptation that
fiduciary conflict doctrine strikes, seeking to avert breaches of non-fiduciary
duties by neutralising influences likely to sway the fiduciary away from the
proper performance of those non-fiduciary duties. As has already been noted,
it is often observed that fiduciary conflict doctrine is applied in a prophylactic
manner, but fiduciary conflict doctrine is more than merely prophylactic in its
application; in its very nature it operates as a prophylactic protection against the
risk that non-fiduciary duties will be breached. Numerous cases illustrate this
function,80 but for present purposes two examples will suffice. First, in Aberdeen
Railway v Blaikie, Blaikie was a director of a railway company who entered into
a contract to buy iron chairs to secure railway tracks. The company accepted
around two-thirds of the chairs, but then refused to accept delivery of any
more on the basis that Blaikie was also a principal of the firm which was
manufacturing and selling the chairs. The House of Lords held for the railway
company. Lord Cranworth L.C. explained why fiduciary conflict doctrine
interferes in such circumstances:
Blaikie was . . . a director . . . In that character it was his bounden duty
to make the best bargains he could for the benefit of the Company. While
he filled that character . . . he entered into a contract on behalf of the
Company with his own firm . . . His duty to the company imposed on
him 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 evil
against which the rule in question is directed.81
78
Meinhard v Salmon (1928) 164 N.E. 545 at 546.

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.460472.
81 Aberdeen Railway (1854) 1 Macq. 461 at 472473.
79
In other words, a fiduciary is prohibited from acting in a situation where there

is a conflict between the basic duty which he owes to his principal and his own
personal 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 explanation
of the fiduciary conflict principle in Bray v Ford:
It does not appear to me that this rule is, as has been said, founded upon
principles of morality. I regard it rather as based on the consideration that,
human nature being what it is, there is danger, in such circumstances, of
the person holding a fiduciary position being swayed by interest rather
than 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 more
difficult task. One can begin, it is suggested, with the proposition that legal systems have judges and other binding decision-makers because it is inevitable that
persons within such systems will enter into dispute. Disputes cannot always be
resolved by consensus between the disputants,85 and so some form of authority
is needed, both in terms of rule-creation and in terms of adjudication over disputes 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 in
which society resolves such conflicts.87 As Alec Stone Sweet notes, the social
demand for [third-party dispute resolution] is so basic, intensive, and universal
that 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 expectations which define the role of the judge.89 The question that arises is whether
the rationale underlying bias law is instrumentalist, as in the case of fiduciary
conflict doctrine, or is instead rather more a core element of the judicial
function and so not so much protective of that function as constitutive of it.
The requirement that judges act without any real possibility of bias appears
to be a relative late-comer, at least in English law. Although concerns about
judges being parties in the case at hand or having financial interests in its
82
Hamilton (1842) 9 Cl. & Fin. 111 at 123.

Bennett (1805) 10 Ves. 381 at 394; Bloyes 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) 56
N.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.231233; D.J. Galligan, Law in
Modern Society (Oxford: OUP, 2007), pp.7274.
86 H.L.A. Hart, The Concept of Law, 2nd edn (Oxford: OUP, 1994), pp.9394, 9698.
87 Freeman, Lloyds 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 Laws Function and the Judicial Function (2003) 20 N.Z.U.L.R. 299
at 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, Lloyds Introduction to Jurisprudence, p.1377.
83
72
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outcome seem to be of longer standing,90 it was not until the 1860s that
it became unequivocally established that judges should not adjudicate where
there was a real likelihood of bias.91 Certainly, there are numerous examples
as late as that time of judges sitting on appellate panels deliberating over the
correctness of a decision they had themselves reached in a lower court,92 and
indeed that practice was still extant to a degree into the middle of the 20th
century,93 despite the fact that at best [such a person] is likely to incline
towards affirming his earlier decision; at worst he can be depicted as a judge
in his own cause.94 There is also anecdotal historical evidence of financial
interests not being treated as seriously as they might now: according to Sir
Richard Bethell, Lord Eldon was a holder of Bank stock, but he never for
a moment considered that he was disqualified from adjudicating in a case in
which the Bank was concerned.95
The relevance of all this is that it suggests that concerns about bias are not
intrinsic to the concept of being a judge or arbiter. That point seems further
supported by the possibility of the bias objection being waived by the parties,96
of such objections being statutorily proscribed by Parliament,97 and of judges
sitting, despite having interests in the subject-matter of the litigation, where no
alternative decision-maker is available, or where necessity somehow otherwise so requires.98 As Cockburn C.J. pointed out in Wakefield v West Riding, a
decision-maker who has an interest in the outcome is not thereby absolutely
incompetent 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 for
Interest, Association or Opinion [1979] P.L. 237 at p.238; Earl of Derbys 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-Chancellors decision on appeal and then again in the House of Lords on appeal
from himself); Trevelyan v Charter (1835) 4 L.J. (N.S.) Ch. 209 and (1844) 11 Cl. & Fin. 714 (Lord
Cottenham sat in the House of Lords on appeal from his own decision as Master of the Rolls); Salomons
v 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 (Lord
Hatherley 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.8687.
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 114115. 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.462463; 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 situation
is naturally rare, but not non-existent: e.g. Dimes (1852) 3 H.L.C. 759 (decisions of the Vice-Chancellor
had to be enrolled by the Lord Chancellor to be appealed against, and the Lord Chancellors interest
did not invalidate this part of the process); H. Tolputt & Co Ltd v Mole [1911] 1 K.B. 836 at 838839;
Judges v Attorney General (Saskatchewan) (1937) 53 T.L.R. 464 at 465, PC; London & North-Western
Railway 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 act
where there is a reasonable apprehension of bias, then bias laws rules must
have some other normative justification. It is arguable that bias law reflects
a concern to ensure good judging. As de Smith puts it, an accurate decision
is more likely to be achieved by a decision-maker who is in fact impartial
or disinterested in the outcome of the decision.100 In other words, bias law
seeks to avoid situations where judges face temptations which might101 lead
them not to perform properly their core function qua judges, of reaching
rational decisions based on accurate findings of fact and proper application
of legal rules, principles and standards. Bias law is concerned with ensuring
that the decision-maker will ignore extraneous considerations, prejudices and
predilections and bring an objective judgment to bear on the issues before
him102 and that he is not turned aside by any motivation to favour one side
as against the other.103 Lord Bingham explained in Davidson v Scottish Ministers
that [w]hat disqualifies the judge is the presence of some factor which could
prevent the bringing of an objective judgment to bear, which could distort the
judges judgment.104
However, this conceptualisation of bias law is disputed. As Laurence Tribe
has pointed out, there are alternative conceptions of the primary purpose of
procedural due process and . . . competing visions of how that purpose might
best be achieved.105 The conception just presented treats bias law as having a
fundamentally instrumentalist rationale, as a protective means of assuring that
the societys agreed-upon rules of conduct, and its rules for distributing various
benefits, are in fact accurately and consistently followed.106 Gerry Maher, by
contrast, has argued that bias law is better understood on the basis that being
judged by an unbiased decision-maker is of intrinsic value in that it properly
respects the autonomy of the party affected by the decision.107 He developed
this 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 pointed
out that many administrative decisions are not straightforward rule applications but rather involve
questions of judgment or interpretation: C. Harlow and R. Rawlings, Law and Administration, 2nd
edn (London: Butterworths, 1997), p.497. This observation does not undermine the point made in
the 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 need
to think there is a single correct decision to be reached by the exercise of a discretion (which itself
would deny the existence of discretion) in order to accept that a decision-makers judgment is more
likely to be better exercised if the decision-maker is required not to act in a situation where there is
a 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.9395).
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.666667.
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.114116; see also Richardson, The Legal Regulation of
Process, 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 judges
interest in the outcome did not actually have any effect on his or her decision,
as with Lord Cottenhams decision in Dimes.108 Instead, Maher argued that
rationalising bias law as based on respect for autonomy better justifies the
bias rule than reliance on the indirect instrumental value in generally achieving
better or more accurate decisions.109
It is not clear, however, that this dignitarian challenge defeats the
instrumentalist analysis when it is properly understood. First, the dichotomy
that Mahers approach creates between respect for autonomy, on the one hand,
and accuracy in decision-making, on the other, is a false one. As Denis Galligan
explains, accurate decisions themselves constitute an important element of
fair treatment, which in turn constitutes an important element of respect
for persons,110 as it is only by such decisions that a persons rights and
other expectations created by law are given proper protection and, ultimately,
respect. In other words, the instrumentalist account is itself an important part
of, rather than a counter-point to, the goal of autonomy.111 Mahers argument
fails to accord sufficient weight to the fact that:
[I]t is rational and defensible to adopt certain procedures on the ground
that they will normally contribute to better outcomes; the rules requiring
impartial decision-makers . . . could be justified on the ground that bias
or personal interest creates a risk that extraneous matters will be taken
into account and influence the outcome.112
Secondly, Mahers critique of the instrumentalist account fails because it is not
at all clear why it accords any greater respect to autonomy or dignity for a
decision to be attacked on the basis of bias where it is clear that the supposed
bias had no effect on that decision: certainly, the party whose fruits of victory
are snatched away by a conclusion that the decision-maker was apparently
biased, even though it is clear that the decision was in no way affected by that
bias, will not necessarily feel that her autonomy is respected when a perfectly
sensible decision in her favour is overturned. The concern raised by Maher is
more 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.666667; Richardson, The Legal Regulation of Process, pp.111114.
108 Maher, Natural Justice as Fairness, p.107; see also B. Toy-Cronin, Waiver of the Rule Against
Bias (2002) 9 Auckland University Law Review 850 at p.871.
109 Maher, Natural Justice as Fairness, pp.108109.
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 of
Freedom (Oxford: Clarendon Press, 1986), p.381; see also D. Feldman, Civil Liberties and Human Rights
in England and Wales, 2nd edn (Oxford: OUP 2002), p.8; R.A. Shiner, Freedom of Commercial Expression
(Oxford: OUP, 2003), pp.230233. As such, an appeal to autonomy does not defeat an instrumentalist
account.
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 judges impartiality,
are important because the more regular the trial, the more likely it is that it will be fair; and the more
likely it is that a just result correct in law will be achieved: see J.D. Heydon, Reciprocal duties of
Bench and Bar (2007) 81 Australian Law Journal 23 at pp.2526.
need be: it has the potential to apply both where it is unclear that the possibility
of bias has had any impact on the decision and also where it is clear that the
possibility of bias has not materialised at all. But an instrumentalist account is
capable of explaining this just as adequately as, if not better than, an account
based on respect for autonomy, because the crux of this issue is simply the
difficulty inherent in proving bias. Again, Galligan explains this well:
. . . bias or personal interest creates a risk that extraneous matters will be
taken into account and influence the outcome. The difficulty of detecting the
influence of such matters is so great that a strict rule is justified; that risk might
even justify a further rule to the effect that actual partiality need not be
proved, 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 of
prejudice suffices because of the difficulty in proving whether that risk
materialised in the decision itself. Hence, bias law focuses its attention on
the question whether there is a:
. . . real danger of bias having affected the decision in the sense of having
caused the decision-maker, albeit unconsciously, to weigh the competing
considerations, and so decide the merits, unfairly.116
As the High Court of Australia put it in Ebner, in language which is clearly
reminiscent of Lord Herschells discussion of fiduciary conflict doctrine in Bray
v Ford,117 the apprehension of bias principle admits of the possibility of human
frailty 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 Bias
law takes a prophylactic approach in order to avoid situations which might
be thought (by the reasonable observer) possibly to divert the judge from deciding
the 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 biased
may be quite unconscious of its effect,120 which makes its identification and
proof exceedingly difficult.121
If it is correct that bias laws fundamental rationale is to provide an
instrumentalist form of protection against decisions being made otherwise
than on the merits, then the analogy drawn between it and fiduciary conflict
doctrine is viable. If, on the other hand, Maher were correct that bias laws
113
Galligan, Due Process and Fair Procedures, p.72 (emphasis added).

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.
114
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fundamental rationale is respect for the autonomy of the parties, then the
connection between the two doctrines is far less clear. Equally, if bias law is
considered an intrinsic part of the decision-making function, then the analogy
between the two doctrines is far from obvious. For the reasons mentioned
above, it is suggested that there is room for bias law to be understood in an
instrumentalist fashion, which in turn means an analogy drawn between it and
fiduciary conflict doctrine is not radically misconceived. The insidious risk of
a decision-maker being affected by an unconscious bias is sufficient reason for
the law to refuse to tolerate the situation, without inquiring into whether it
actually had any influence on the decision of the judge, just as fiduciary conflict
doctrine is concerned to protect proper performance of fiduciaries duties by
seeking 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 in
the integrity of the administration of justice,122 whereas fiduciary conflict
doctrine does not appear so concerned with securing public confidence. There
are at least three points in answer to this objection. First, while fiduciary
conflict doctrine might not appear to be concerned with securing public
confidence, it is nonetheless concerned with securing confidenceit clearly
seeks to give principals confidence in their fiduciaries by the imposition of rules
which contribute to ensuring fiduciaries properly perform their non-fiduciary
duties. Tamar Frankel has argued that fiduciary doctrine is designed so as
to entitle principals to trust and rely on their fiduciaries: Fiduciaries should
be trustworthy.123 This sentiment can be shown to have a strong pedigree
in English case law. As long ago as 1795, Lord Thurlow said that fiduciary
conflict doctrine:
. . . seems to be a principle so exceedingly plain, that it is in its own
nature indisputable, for there can be no confidence placed, unless men will do
the duty they owe to their constituents, or be considered to be faithfully
executing it, if you apply a contrary rule.124
While fiduciary conflict doctrine allows the fiduciarys principal, rather than
the public, to have confidence, the nature of the confidence remains the same:
. . . confidence depends . . . on the procedures being of a kind which
we have good reason to believe will produce the right results. The value
is not in the procedures themselves but in their contribution to the right
or 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 140141, 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 All
E.R. 187 at [15]. See also Allars, (2001) 18 Law in Context 12 at p.43; Toy-Cronin, (2002) 9 Auckland
University 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 seeking

to ensure that the procedures by which those outcomes are reached are free
from factors which might cause those outcomes to be doubted.
The second point to be made is that while public confidence in the
administration of justice is important to the doctrine of bias, its importance
ought not to be overstated. The doctrine is also important to the confidence
of the parties to the proceeding, as is emphasised in Lord Binghams reference
in Davidson v Scottish Ministers to maintaining the confidence of the parties
and the public,126 and indeed even more so in Lord Hopes reference to
the doctrine as a matter of individual right.127 Consistently with this, the
publics potential lack of confidence in the justice system does not prevent
a litigant from waiving his or her right to object on the grounds of bias.128
The publics confidence remains important in determining whether there is
an appearance of bias in the circumstances, but it is not the sum total of the
doctrine of bias.
The third point worthy of note in this regard is that, while fiduciary
doctrine appears to be concerned more with promoting confidence in private
arrangements than with promoting public confidence, there is a very real sense
in 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 requires
the Court to act upon the general [fiduciary] principle.129 There is an element
of rhetorical hyperbole in this dictum, but the point being made is that the
doctrine is based on a concern to ensure public confidence in fiduciaries as
well 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 a
society. 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 bias
law and fiduciary conflict doctrine is perfect. In particular, frequent references
within bias law to independence and impartiality have the potential to
be misleading in the fiduciary context because pure independence is not an
126
Davidson [2004] UKHL 34; (2005) 1 S.C. (HL) 7 at [7]

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 in
Context 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 to
be heard in respect of the original decision, despite the fact that the party was directly affected by that
decision: 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 184186; Hughes
Aircraft 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.
127
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obvious characteristic of relationships traditionally involving fiduciary duties.

Indeed, some of the clearest examples of fiduciary relationships involve a very
close relationship between fiduciary and principal: a director is not thought of
as 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 same
function as agents.131 In bias law, the paradigm situation is that of a judge
deciding impartially between two parties,132 and hence there is an expectation
that the judge be independent from both. That is not the paradigm in a
fiduciary relationship. However, fiduciary doctrine does require a form of
independence and impartiality: the fundamental point of the fiduciary conflict
doctrine is to require that the fiduciary be free from interests which are
inconsistent with the duties he owes to his principal. In other words, it
is independence from competing interests that is the core concern of fiduciary
conflict doctrine, rather than independence from the principal. In terms that
are used in connection with bias law, fiduciary conflict doctrine requires that
the fiduciary be free from extraneous influences or considerations.133 Thus,
the trustee, who is required to act in the interests of the beneficiaries of
the trust, must ensure that she remains independent in her role qua trustee
from any personal interest which might interfere with her obligations to
the beneficiaries. Similarly, an agent acts on behalf of his principal so as to
alter the principals relations with third parties,134 and the agents acts are
then treated in certain respects as if they were acts of the principal.135 It
would be perverse to suggest that the agent must remain independent and
impartial from his principal, but independence from personal interests where
the agent enters transactions on behalf of his principal is not at all perverse
and is precisely what fiduciary conflict doctrine demands of the agent. It
makes similar demands in respect of solicitors and their clients, and with
directors and the companies for which they work. In other words, fiduciary
conflict doctrine attempts to ensure that the fiduciary remains independent
from interests which may compete for attention with those of the principal. In
that respect it is protective of the fiduciarys underlying non-fiduciary duties,
just as bias law seeks to protect against extraneous influences which might
possibly divert a decision-maker away from deciding the case properly on
its merits. While the functions served by judges and fiduciaries differ, the
rationale of protecting the proper performance of those functions by seeking
to eliminate inconsistent influences is common to both bias law and fiduciary
conflict doctrine.
131
Watt v McPherson (1877) 4 S.C. (4th Series) 601 at 611.

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.
132
Remedial considerations
The final area in which to consider the similarities or differences that might
exist between bias law and fiduciary conflict doctrine lies in the remedial
considerations that arise in connection with each doctrine. In this context, the
differences 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 not
become involved without knowledge. In other words, the transaction is
voidable, rather than void.136 Furthermore, the principal is entitled to request
an account of any profits which the fiduciary has made as a result of the
breach,137 and there is authority to the effect that equitable compensation is
available should the breach be proven to have caused any loss.138
The differences in the context of bias law are relatively obvious, although the
degree to which these are substantial differences requires some consideration.
First, whereas a breach of fiduciary conflict doctrine renders transactions
voidable, the orthodox view in English law is that bias renders void any decision
which the decision-maker reaches.139 However, it is possible to overstate this
difference, 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 the
decision becomes valid and effective in law once the law refuses to provide any
remedy to reflect its initial illegitimacy: there is no incongruity in saying that
where there is no remedy the void act must be taken as valid.140 This has led
to the argument that, in practical terms, the decision must be treated as valid
unless and until a remedy has been provided to reflect its invalidity and so the
decision should be regarded as voidable rather than void ab initio.141 For present
purposes, it does not matter which of these two positions is takenwhat is
clear is that the concept of what it means to be void in administrative
law is somewhat more flexible than its label would suggest. Even where a
decision is ultra vires the decision-maker, a public law court still has discretion
as 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 at
585, 589590; 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 Varieties
Ltd [1902] 2 Ch. 809 at 823, 831832; Swindle v Harrison [1997] 4 All E.R. 705; Warman International
Ltd v Dwyer (1995) 182 C.L.R. 544 at 559; Breen v Williams (1996) 186 C.L.R. 71 at 113; Aequitas v
AEFC [2001] NSWSC 14; (2001) 19 A.C.L.C. 1,006 at [428], [442]; Re MDA Investment Management
Ltd [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.474475.
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 108109; C. Forsyth, The Metaphysic of Nullity:
Invalidity, Conceptual Reasoning and the Rule of Law in C. Forsyth and I. Hare (eds), The Golden
Metwand 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 Theoretical
Consequences 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 the
fiduciary has acted pursuant to a legal or an equitable power. Where the power
is merely equitable the difference between void and voidable is of little, if any,
importance143 because an improper exercise of the power is simply ignored
in equity (and it would always have been ignored at law, because courts of law
did 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 of
a breach of fiduciary duty is potentially of more consequence, although even
there the difference is not as great as is sometimes supposed. In Abacus Trust
v 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 trust
proceedings the legal classifications of void and voidable must be respected
. . . and the court only has a discretion and can only have regard to the
lapse of time between the act under challenge and the challenge when
the challenged act is voidable and not void.144
With respect, this is not so for a number of reasons.145 First, it is possible for
the equitable doctrine of laches to justify a claimant being refused relief in
equity, 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 remain
at law unless and until reversed, and a third party may be able to prevent any
reversal of those consequences, for example because he is a bona fide purchaser
of 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 discretionary
than those available in private law, it should not be thought that equitable
remedies always follow inexorably from breaches of equitable duties.146
A second difference affecting the practical outcome of claims brought on
the basis of bias law and fiduciary conflict doctrine respectively rests in their
divergent approaches to standing. It is clear in fiduciary doctrine that third
parties (those outside the fiduciary relationship) do not have standing to seek
to have a voidable act set aside; even the Revenue is only able to intervene
where a trustees action was void and so of no effect, as it remains valid
until 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 elements
in 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 774775,
778; R. v Secretary of State for Social Services Ex p. Association of Metropolitan Authorities [1986] 1 W.L.R.
1 at 1415.
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 Snells Equity, para.12-04.
147 Sieff v Fox [2005] EWHC 1312 (Ch); [2005] 1 W.L.R. 3811 at [78].
148 Batemans 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 Macquarie
Infrastructure 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 initial

barrier to interdict applications brought by busybodies, cranks, and other
mischief-makers150 but, provided that initial barrier is passed, the merits of
the application must then be considered.151 In this way, the issue of standing is
effectively folded into consideration of the question whether the applicant has
shown a sufficient case to warrant a remedy being granted.152 This does not
mean that the question of standing in administrative law is now wholly fused
with the merits.153 However, the rules of standing have undoubtedly been
relaxed in administrative law,154 such that the question of standing is now
focus[ed] upon public policy rather than private interest,155 perhaps reflecting
the polycentric nature of public law issues,156 and so is broader than that
which is applied in the context of private law disputes.
Finally, a third remedial difference between bias law and fiduciary conflict
doctrine rests in the availability of pecuniary awards. Whereas these clearly
are available, and are very important, in the resolution of fiduciary conflict
claims, they are not made available in the context of bias law claims: a biased
decision may be quashed (or recognised as void) but no monetary award will
follow.157 It is possible to strip from a public decision-maker any bribe which
he or she may have received,158 but the basis for that monetary award is the
decision-makers breach of fiduciary duty in accepting the bribe, rather than
the clear allegation of bias to which it would also give rise.
Conclusions
One can easily identify superficial linguistic similarities between fiduciary
conflict doctrine and bias law: words such as impartiality, independence,
149 For the old (more restrictive) law on standing, see Wade & Forsyth, Administrative Law,
pp.679690.
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] 1
Q.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. v
Secretary of State for Foreign and Commonwealth Affairs Ex p. World Development Movement Ltd [1995] 1
W.L.R. 386 at 395. See generally Wade & Forsyth, Administrative Law, pp.690700.
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.394395; A. Chayes, The Role of Judges in Public Law Litigation (1976) 89 Harvard Law Review
1281 at pp.12891292. This is not to say that the problems associated with polycentric issues cannot
also arise in private law disputes: see Fuller, above, at pp.397398; J.W.F. Allison, Fullers Analysis of
Polycentric Disputes and the Limits of Adjudication [1994] C.L.J. 367 at pp.371373.
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 if
it has, the reason for a monetary award then is the public officers commission of a tort rather than the
mere 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 are
often used interchangeably between the two doctrines. However, this article
has sought to delve deeper than those similarities and to offer a more detailed
review of the law relating to bias and fiduciary conflict doctrine in order to
compare 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 linguistic
similarities do carry through into similar methodologies adopted within both
sets of doctrine, although the analogy between the two doctrines is slightly less
clear when one considers their respective rationales and the remedies made
available in respect of each.
Perhaps the most important of these apparent differences is the difference
between the rationales of the two doctrines, as one would expect operational
differences to flow from differences in rationalisation. Under the dignitarian
view of bias law, the similarities with fiduciary conflict doctrines rationalisation
are far from clear. However, it has been argued that the two doctrines can be
seen to exhibit the same underlying rationale if one accepts an instrumentalist
conceptualisation of bias law, as being fundamentally concerned with protecting
decision-makers from influences which make it more likely that they will reach
inaccurate (or poor) decisions. In other words, it is possible to conceive of bias
law as seeking to avoid extraneous influences which create a real possibility
of the decision-maker failing to perform properly his or her fundamental task
of reaching an accurate and justifiable decision. Similarly, fiduciary conflict
doctrine seeks to remove temptations which might cause fiduciaries not to
perform their underlying tasks properly. Just as fiduciary conflict doctrine is
designed to protect the proper performance of the non-fiduciary duties which
a fiduciary owes as a result of his fiduciary office, it is also possible to conceive
of bias law as protecting proper performance of a public decision-makers
function from interference.
However, having raised the issue of rationale as an important issue when
considering the degree to which an analogy between bias law and fiduciary
conflict doctrine may or may not be exact, it is crucial also to bear in mind the
purpose for which the analogy is being drawn, as this will identify the degree
to which different aspects of the analogy may have particular importance. If the
purpose of the analogy is simply to draw attention to the fact that private law
and public law both contain doctrines which operate so as to achieve similar
effects, then differences in the rationales for the existence of the doctrines are of
less importance than the methodologies deployed by each doctrine. However,
the fact that two doctrines achieve similar effects does not indicate that the
two actors to whom the doctrines applyfiduciaries and public officialsare
generally treated in the same way. Such a conclusion can only validly be reached
following detailed examination of several doctrines applicable to each kind
of actor.
In contrast, if the analogy is being used to provide a basis for the development
of one or other of the doctrines, the rationales underpinning each set of
doctrines become far more important than the mere fact that the doctrines
operate in roughly similar ways, because developments in the way that doctrines
operate may mean they no longer accurately reflect their underlying purposes.
Alterations in the underlying rationale of doctrines are far more fundamental

than mere methodological or operational alterations, and ought only to be made
after careful consideration and certainly not on the basis of merely superficial or
abstract similarities. In particular, it becomes especially important to consider
why a doctrine applies to a particular kind of actor as that context may indicate
why a doctrine applies to that actor and yet would not be appropriate for a
different kind of actor. It has not been possible in this article to develop a
contextual comparison of fiduciaries and public officials, but the groundwork
has been laid as regards two doctrinesthe fiduciary conflict principle and the
doctrine of biasto show that such a comparison is a worthwhile endeavour.
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The Courts and Politics after the

Human Rights Act: A Comment
Tom Hickman*
Blackstone Chambers
Administrative decision-making; Constitutional law; EC law; Human

rights; Judicial decision-making; Politics and law
The past decade has been a significant period of constitutional reform.1 Its
significance has led some commentators to suggest that the reformsespecially
the Human Rights Act 1998 (HRA)have affected, or should affect, a
radical change in the role of domestic courts. One strain of argument suggests
that instead of determining whether conduct on the part of the state violates
individual rights, courts should engage in a debate with Parliament, government
and 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 legal
principle instead of resolving them. This view would represent a fundamental
shift in the orthodox understanding of the constitutional role of courts. It is of
practical importance to how judges decide cases and how politicians respond
to them. It is also relevant to the issue of what role the courts should have
under any future bill of rights, which is once again a hot topic. This paper
therefore critically examines this view, taking as its focus the arguments put
forward 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 dialogic
constitutional theory. The idea of dialogic constitutional theory is opaque
and 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 this
paper, as well as to participants in a constitutional theory seminar held at Oxford University on June
12, 2007, at which some of the ideas in this paper were presented, for their helpful comments and
probing questions.
1 See V. Bogdanor. Our New Constitution (2004) 120 L.Q.R. 242 referring to 15 separate
reforms 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 before
them; and they interact with legislatures and governments in ways that are
both subtle and constructive. Broadly speaking, constitutional theories can be
described as dialogic when they emphasise the legitimacy and desirability of
courts not resolving questions of principle but instead allowing those issues, for
the time being at least, to be considered by others.
One type of dialogic theory emphasises the legitimacy and desirability of the
courts avoiding resolving questions of principle, for example by determining
claims 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 by
deciding a case on the merits but on a narrow ground, for multiple overlapping
reasons, or without endorsing any rule or principle with general application.
In such cases, the courts leave the question of general principle undecided
and cast it back adrift on the sea of political controversy. Some commentators
emphasise both the legitimacy and central importance of these techniques to
the proper exercise of the judicial function in constitutional cases. Thus, it
has been argued that these techniques (or devices) allow courts to avoid
questions of principle until a greater degree of consensus has developed within
society on the issue in question. Courts can also avoid the possibility that
they will have to compromise important principles by finding that they are
overridden by the pressing, but passing, needs of the moment. At the same
time the courts will take small steps in the direction of principled goals and
in so doing nudge society towards a greater more principled consensus.4 A
variant on this view holds that the courts should seek to use these techniques
of avoidance actively to promote and encourage political debate in the hope
that it will be resolved by the legislature.5
In contrast, other theorists either leave out of account this aspect of judicial
technique or argue against the use of techniques of avoidance save, perhaps, in
exceptional circumstances. Such theories can be described as non-dialogic.6 For
example, theories of rights absolutism claim that the function of constitutional
courts should be to pronounce principles of fundamental justice and enforce
them as higher law. Avoiding doing so is a deviation from the proper function
of the courts.7
prolonged exchange, which is not a prerequisite for the use of the term in the context of public law
and 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 BranchThe Supreme Court at the Bar of Politics, 2nd edn (New
Haven: Yale University Press. Originally, Indianapolis: Bobbs-Merrill, 1962).
5 C.R. Sunstein, One Case at a TimeJudicial 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. 306
at pp.311315.
7 A Dworkinian court of Herculean judges would seek to capture questions of fundamental principle
from the arena of party politics and resolve them by discerning and applying fundamental principles
from the entire corpus of norms within the constitutional system: e.g. Taking Rights Seriously (new
impression 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 theory
maintains that the courts should not be regarded as resolving questions of
principle even when they address such issues head-on. The courts debate with
society not when they avoid determining questions of principle, but when
they address (and purport to decide) questions of principle. The function of
the courts is to propose principled arguments for resolution by the political
branches. On this view, the courts are denied the function of finally resolving
questions of legal principle and are assigned instead the role of participant in
a debate about their scope and content. The important result is that the courts
have a weakened constitutional status. As Nicol states in his article advocating
such a view, it is, not entirely fanciful to recast the Law Lords as a political
faction.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 on
the power conferred on the courts by HRA s.4 to grant a non-binding
declaration that legislation is incompatible with rights protected by the
European Convention on Human Rights (the Convention). Professor Tom
Campbell has written9 :
. . . it would be best if declarations of incompatibility were to be
seen as routine and unproblematic. If moral disagreement over what
the provisions of the ECHR should be taken to mean is accepted as
commonplace, because of the inherently controversial nature of the issues
which call to be determined in making such interpretations, then the
courts should be regarded as having the right to make only provisional
Review 1387 at 13991404. See further Hickman, Constitutional Dialogue, Constitutional Theories
and the HRA 1998 [2005] P.L. 306 at pp.315316.
8 Nicol, Law and Politics After the Human Rights Act [2006] P.L. 722 at p.743. For US and
Canadian variants see M. Tushnet, Taking the Constitution Away From the Courts (New Jersey: Princeton
University Press, 1999); C.P. Manfredi, Judicial Power and the CharterCanada and the Paradox of Liberal
Constitutionalism, 2nd edn (Oxford: OUP, 2001); K. Roach, The Supreme Court on TrialJudicial
Activism or Democratic Dialogue (Toronto: Irwin Law, 2001) (although Tushnet, Roach and Manfredi
differ in other important respects).
9
T. Campbell, Incorporation through Interpretation in T. Campbell, K.D. Ewing and
A. Tomkins, eds, Sceptical Essays on Human Rights (Oxford: OUP, 2001). Also, Francesca Klug
has written: [Under the HRA] a dialogue is established between the courts, Parliament (with its new
Joint Committee on Human Rights) and Government (whose Ministers have to make human rights
impact statements when introducing new bills). More importantly, this tripartite approach creates the
space for any of us to join in the debate about where the line should be drawn when rights collide;
The Human Rights Acta third way or third wave Bill of Rights [2001] E.H.R.L.R. 361 at
370. [The HRA] was not enacted so that the courts could have the final say in areas where there is
no settled human rights answer . . . Parliament would be entitled to choose to protect its democratic
mandate 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 Rights
Act 1998 [2003] E.H.R.L.R. 126 at 132. See also, R. Clayton, Judicial deference and democratic
dialogue: the legitimacy of judicial intervention under the Human Rights Act [2004] P.L. 33. In, A
Bill of Rights: do we need one or do we already have one? [2007] P.L. 701, Klug may have changed
her tune, arguing in defence of the HRA that the reality is declarations of incompatibility are accepted
by the government (p.708).
determinations of what it is that human rights asserted in the ECHR

require us to do. These determinations may, with perfect propriety, be
challenged and overturned by elected governments after public debate.
A question that arises from such a focus is whether the courts dialogic function
is supposed to be limited to cases decided under the HRA. To the extent that
these writers do take this view, their claim is that the courts put on a different
hat when they decide cases under the HRA from the hat they wear when they
decide all other cases in public law and private law. Such a view would be
odd, to say the least, since it would require the courts to adopt a schizophrenic
attitude 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 breach
of the common law. The House of Lords held that a policy requiring the
absence of prisoners during examination of privileged correspondence breached
the common law right to confidentiality of privileged communications as well
as the right to respect for correspondence under Art.8 of the Convention.
Lord Bingham stated that, the common law and the convention yield the
same result.11 In so stating, his Lordship was not declaring a conclusion of
principle on the common law claim and a mere opinion as to the correct
interpretation of the Convention (to be resolved by some other branch of
the state) on the HRA claim. Moreover, it would not be sensible to treat
the status of their Lordships conclusions on the Convention and the common
law any differently. Apart from anything else, if the decision was thought be
questionable from a moral or political point of view, such questions would
be equally applicable to the right found to exist under the Convention as that
found to be part of the common law. Furthermore, the court approaches both
issues in precisely the same way. Any distinction between the courts two
conclusions would therefore be arbitrary.
Proponents of this form of constitutional dialogue might seek to take refuge
from such criticism in the distinction between HRA s.4 and ss.6 and 3, and
argue that the court should only be treated as functioning dialogically (in
the weak sense) when a declaration of incompatibility is made under s.4.
Essentially, the argument would be that the courts wear a different hat only
when they grant a declaration of incompatibility (and Daly was not a s.4
case 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 legislation
as opposed to secondary legislation, or policy, may simply be a matter of
chance or expediency. It bears no necessary connection to, for example, how
controversial or complex the question in issue is. There is therefore no good
reason for thinking that the nature of a courts decision that there has been
a 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] 2
A.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 one

considers that under the HRA, primary legislation includes certain Orders in
Council 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 the
courts can strike down primary legislation made by the Scottish Parliament and
the Northern Ireland Assembly.14 Properly understood, s.4 relates only to the
remedy that the court grants when it finds a violation of the Convention: it
cannot change the nature of its adjudication.
In his engaging and wide-ranging article, Nicol goes beyond the HRA
and declarations of incompatibility and argues that we should accept a
transformation of the judicial function more generally, having regard to
developments in public law as a whole.15 Nicol summarises his argument in
the following terms:
Rather than attempt to integrate rights into the traditional culture of
law, the HRA requires a profound shift in our very conception of the
judicial role. Judicial output needs to be reconceptualised as a contestable entity,
wherein courts present their thoughtful opinions on rights, which Parliament can
substitute with its own favoured interpretation, provided it is willing to pay the
political price.16
This is Nicols alternative vision. Nicols argument is:
1. Over the past 50 years, and particularly in relation to the adjudication
of fundamental rights, there has been has been considerable
convergence between law and politics.17
2. The dominant law-bounding-politics conception of public law
championed by liberal writers, practitioners and judgeswhich I
will describe as the liberal legalist viewdoes not represent either an
accurate or appealing account of the relationship between the courts
and the political branches.
12 To say that the nature of the adjudication is the same is not the same as saying the substance of the
adjudication is the same. As a matter of substance, courts might reach a different result on the issue
of Convention compatibility when reviewing primary legislation if they apply the principle suggested
in some cases that greater latitude should be afforded to primary legislation (e.g. International Transport
Roth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158; [2003] 1 Q.B. 728
at [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 Home
Department [2004] UKHL 56; [2005] 2 A.C. 68 at [42] (Lord Bingham)). Crucially, whether primary
legislation is in issue or not, the courts are engaged in resolving issues of Convention compatibility, not
making 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 between
public and private law. For instance, there is no good reason why a court should be treated as resolving
what amounts to a breach of a persons right to privacy in a claim between private individuals but not
when the claim is against the government.
16 Nicol, Law and Politics After the Human Rights Act [2006] P.L. 722 at p.743 (emphasis in
original, 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, which
should be understood as a political faction proposing to the government
and Parliament the way that the judges consider fundamental rights
should be interpreted.
Nicols first point is accurate as a broad proposition, but the degree of the
convergence is far less than either his arguments establish or than would be
required for us to accept that a profound reconceptualisation of the judicial
role is required. It is possible to have some sympathy with Nicols second point
because liberal legalist accounts of public law focus on the notion of politics
being subject to law at the expense of the fuzzy but fascinating border between
law and politics. For instance, liberal legalists focus on the manner that courts
counteract the excesses of politicians but pay little attention to way that courts,
Parliament and government interact in moving society towards more principled
positions.18 It nonetheless requires a giant leap from this position to Nicols
third proposition. It certainly does not follow that the imperfections in liberal
legalist accounts of public law require our acceptance of Nicols alternative
vision.19 Although I will return briefly to Nicols first proposition, I want
first to address Nicols third proposition directly.
Nicols alternative vision
Nicols claim is that his alternative vision presents a more attractive balance
between democracy and fundamental rights than the dominant liberal legalist
view.20 However, if we are to accept it, Nicols theory must not only provide
a more persuasive and appealing account of the judicial function in public
law cases, but also of all other possible accounts. The fact that liberal legalism
provides an imperfect model does not lead us to Nicols alternative vision by
default. In examining the cogency of Nicols alternative vision, it is helpful
to distinguish between the effect of Nicols alternative vision on the way
cases are decided (legal effects) and the effect on the way cases are treated
(constitutional effects).
Legal effects
If we look first to the legal implications of Nicols alternative vision, it is difficult
to work out what Nicol considers them to be. Thus, Nicol claims that the courts
should adopt an uninhibited use of declarations of incompatibility; but he
seems 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 my
own position as premised on a clear division of principle and policy, which is central to liberal legalist
accounts, but not my own: [2006] P.L. 722 at p.736. See also the more nuanced liberal legalist theory
of Trevor Allan, e.g. Constitutional Dialogue and the Justification for Judicial Review (2003) 23
O.J.L.S. 563.
19 For some modest attempts to articulate an in-between position see Hickman, Constitutional
Dialogue [2005] P.L. 306 and (2005) 55 University of Toronto Law Journal 981.
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HRA s.3 is correct.21 More puzzling and important is how Nicol thinks judges
committed to his alternative vision should go about interpreting fundamental
rights. He argues that judges should be fearless, uncompromising and
outspoken22 ; and argues that, [u]nder the HRA the judiciary should
assume the role of honest orator23 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 what
they think.25 But what does this mean in practice? On the one hand, Nicol
might mean that judges do not presently decide cases on the basis of what
they think is the right outcome, but that they should do so. One rather
hopes, in fact, that judges do already decide cases on the basis of what they
consider to be the right result. Moreover, I can think of no legal theorist
who claims that they should not do so. On the other hand, Nicol might be
making a different point: that although judges decide cases on the basis of
what they think is the right result their reasons do not reflect the basis for
their decision. It has, for instance, been argued by legal realists and others
that although judges give reasons of principle and policy for their decisions,
these merely serve to conceal the fact that the decisions have been reached on
other grounds, such as the judges 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 the
judge should be conceived as a privileged position to advance augments of
principle to Parliament, the government and wider society. Nicol does not
suggest that judges should use their office as a means of promoting, for instance,
their own personal political or religious views, but for proposing arguments of
principle.
Another possibility is that Nicol is arguing that judges should ignore any
doubts and routinely come down against the government. Take for example
the case of A v Secretary of State for the Home Department26 in which the
House of Lords held that that there was a state of emergency threatening
the life of the nation which justified derogation from the Convention,
but that the indefinite detention powers in the Anti-Terrorism Crime and
Security Act 2001 enacted pursuant to the United Kingdoms derogation were
discriminatory and disproportionate. The decision of the Committee on the
national 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 he
disagrees with R. v A (No.2) on the House of Lords approach to s.3 (p.729). Importantly, it now
seems 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] (Lord
Steyn).
22 Nicol, Law and Politics After the Human Rights Act [2006] P.L. 722 at pp.744745, and 750
24 Nicol, Law and Politics After the Human Rights Act [2006] P.L. 722 at p.750
26 [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.662664.
of a robust dissent from Lord Hoffmann, three members of the Committee

admitted to having doubts about the correctness of their conclusion.28 This
may be a good example of their Lordships fears getting the better of them.
Had they subscribed to Nicols alternative vision of how they should decide
the case, their Lordships, recognising that they were giving only a view
for Parliament to accept or reject as it saw fit, would have come down
fearlessly against the government. It seems to me, however, that it is not only
unappealing but would be irresponsible for judges to act as ideological partisans
in this way. There can be no justification for judges being institutionally or
ideologically predisposed to one party to a case. It would also be irresponsible
for judges to ignore their doubts about whether they have reached the right
result on the basis that it is open to Parliament to come back and change
the decision if it does not agree with it. Judges must strive to reach the
right result irrespective of what Parliament or the government could or might
do.29 Moreover, as a matter of practicalities there will rarely be parliamentary
or governmental time available to debate, still less correct, judicial decisions.
It is therefore both unprincipled and unreal to suggest that judges should
decide cases on the basis that the matter will ultimately fall to be determined
elsewhere.
Nicol is however not alone in advocating such an approach. Kent Roach,
one of the foremost advocates of a dialogic approach to the Canadian Charter
of Fundamental Rights and Freedoms 1982, has developed a very similar
argument about how judges should decide cases under the Canadian Charter.30
For Roach, the function and legitimacy of the Canadian Supreme Court is
conceived in terms of its ability to remind legislatures and society about
anti-majoritarian and often unpopular principles and to enrich democratic
debate. Roach advocates overenforcement of the Charter because it will
result in spirited and self-critical dialogue in which Parliament considers and
responds to Charter decisions.31 He therefore considers that judges should
interpret rights generously, perhaps too generously32 and should run the
risk of being overly active.33 To my mind, Nicol and Roachs approaches
suffer from the same difficulties of principle in that they come dangerously
close to advocating judicial recklessness: they ask judges to run the risk of
being 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 Scott
expressed very great doubt (at [154]), Lord Rodger acknowledged hesitation (at [165]). Contrast
Lord Hope, ample evidence (at [118]), and Baroness Hale, not . . . qualified or even inclined to
hold otherwise (at [226]).
29 See also Jeffrey Jowells view: The courts are charged by Parliament [under the HRA] with
deliminating the boundaries of a rights-based democracy. In doing so, they ought not in any way be
influenced by the fact that Parliament may in the end disregard their pronouncements. Nor should they
prefer the authority of Parliament or other bodies on the ground alone that they represent the popular
will, 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 TrialJudicial Activism or Democratic Dialogue, p.284.
32 Roach, The Supreme Court on TrialJudicial Activism or Democratic Dialogue, p.238.
33 Roach, The Supreme Court on TrialJudicial Activism or Democratic Dialogue, p.284.
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democratic debate. Judges and judgments may enrich democratic debate, but
they should not do so at the expense of getting their judgments right on points
of principle.
Nicol also suggests that judges should refrain from acting prudentially,
i.e. from avoiding resolving questions of principle (which the first type of
dialogic theory that we considered claims to be legitimate and desirable).34
It is important to appreciate that at least one virtue of judicial avoidance
techniques is that they avoid the courts otherwise approving a restrictive
interpretation of individual rights. They give effect to the need for political
compromise without compromising principles themselves.35 A v Secretary of
State for the Home Department provides a good example. It would have been
much preferable for the House of Lords to have declined to decide whether
there was a state of emergency at all, which was not necessary for its decision,
instead of positively holding (Lord Hoffmann dissenting) that conditions in
the United Kingdom permitted derogation from the Convention.36 If their
Lordships had real and justifiable doubts, this is how they should have given
effect to them: not by deciding that there was an emergency, or that there
was no emergency, which was not necessary for their decision. It is all very
well for commentators to criticise judges for not grasping the nettle of difficult
issues, but it is often better that they do not do so if the alternative would
be legitimising a compromise of principle. Nicols approach is only preferable
from the perspective of protecting individual rights on the premise that the
court 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 Nicols alternative vision. For instance,
what is a court to do faced with a challenge to reply legislation enacted by
the government or Parliament? If the courts decide cases on the basis that
they are only proposing arguments of principle to be resolved by others then
they should, acting consistently in this role, refuse to review or scrutinise such
replies 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.744745. It also might be the case that Nicol considers that the courts should not apply
a doctrine of deference. This would not however distinguish his case from legal liberalism, which is
sceptical of doctrines of deference, and it would suffer from the same failing that he attributes to liberal
legalism, 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 the
rape shield law.
35 This was one of the insights and premises of A.M. Bickels great book, The Least Dangerous
BranchThe Supreme Court at the Bar of Politics; also Bickel, The Supreme Court, 1960
TermForeword: The Passive Virtues (1960) 75 Harvard Law Review 40. Nicol overlooks this
when he refers to the fact that the courts give effect to the need to compromise principles in these ways
as an example of judges doing what politicians do. He misses the point that it is not that judges do not
make compromises, but the way in which they do so, that sets their function apart from politicians. See
Hickman, Constitutional Dialogue [2005] P.L. 306 at pp.318321.
36 Essentially this point is made by A. Tomkins, Readings of A v Secretary of State for the Home
Department [2005] P.L. 259: Rather than guessingwhich is what the Law Lords appear to have
donewhat 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 the
legal position. Although Nicols dialogic theory is robust in the first instance,
judicial resistance would melt away when its contribution to the democratic
debate has been made and Parliament enacts a considered response.37
Moreover, what is a judge to do when the issue involves a balance between
the rights of two individuals? This difficulty is brought out by Nicols criticism
of the House of Lords judgment in R. v A (No.2)38 for doing, as far as I
can tell, precisely what his alternative vision prescribes, namely, standing up
for individual rights in the face of broader societal concerns relating to the
under-conviction of sexual assault crimes and the effect of cross-examination
on 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 of
complainants. In an extraordinary vitriol, Nicol accuses the House of Lords of
being cruel and blinded by its zeal . . . for base prejudice.40 Leaving these
comments aside for a moment, the judgment would appear to be precisely
in line with Nicols alternative vision. Their Lordships, (1) made clear to
Parliament what in their view are the requirements of a fair trial, (2) came
down fearlessly in favour of the vulnerable minority with the most immediate
call on the courts for protection; namely, accused persons,41 and (3) put the
ball back in Parliaments court.
The relevant part of the House of Lords reasoning actually consists of three
straightforward propositions. First, the House of Lords reaffirmed that the right
to a fair trial is absolute. Second, it held that depriving accused persons of the
ability to lead relevant evidence which is important to a ground on which they
intend to defend themselves would deprive them of a fair trial. Third, that
evidence of prior sexual history, such as that the complainant and the accused
were in an ongoing relationship, could be relevant and important to the issue
of consent in a trial for rape, which provides the accused with a defence to the
charge. It followed that where an accused could not lead such evidence as part
of his defence the trial would be unfair.42 The House of Lords was unanimous
on 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 adhering
to a different type of dialogic approach see Hickman, Constitutional Dialogue [2005] P.L. 306 at
pp.328330.
38 [2001] UKHL 25; [2002] 1 A.C. 45.
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 Lords
ought therefore to have prioritised the rights of women over those of accused persons. But despite the
undeniable 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 therefore
not in that capacity underprivileged), a segment of society with an even more immediate claim to the
protection of the courts.
42 The House of Lords also unanimously held that s.41 of the Youth Justice and Criminal Evidence
Act 1999 should be read so as to allow a fair trial, although differing on how this should be achieved
and whether the statute itself violated Art.6 of the Convention as opposed to its effects in individual
cases: see Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 A.C. 557 at [47] (Lord Steyn). Nicol
also 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 is
which led to the House of Lords conclusion he disagrees with.
Constitutional effects
If we now turn to the constitutional effects that would follow from accepting
Nicols theory, we find them also puzzling. Nicol states that judicial decisions
should be given a contested rather than absolute status.43 The most obvious
implication of giving judicial decisions a contested status is that they do not
have to be followed. Precisely this approach has been suggested at a couple
of points in the constitutional history of the United States and finds its most
infamous expression in the Governor of Arkansas refusal to implement the US
Supreme Courts decision in Brown v Board of Education.44 This led to the case
of Cooper v Aaron in which the Supreme Court articulated the requirement for
state officials and legislatures to follow its orders. Justice Frankfurter stated in a
concurring Opinion45 :
Criticism need not be stilled. Active obstruction or defiance is barred.
Our kind of society cannot endure if the controlling authority of the
Law as derived from the Constitution is not to be the tribunal specially
charged with the duty of ascertaining and declaring what is the supreme
Law of the Land. . . . The Constitution is not the formulation of the
merely personal views of the members of this Court, nor can its authority
be reduced to the claim that state officials are its controlling interpreters.
The equivalent position in the United Kingdom was set out by Lord Woolf
in the no less constitutionally significant case of M v Home Office, holding that
the Crown can be found to be in contempt of court. Lord Woolf stated that
a 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 has
also stated obiter that47 :
Just as the courts must apply Acts of Parliament whether they approve
of them or not, and give effect to lawful official decisions whether they
agree with them or not, so Parliament and the executive must respect
judicial decisions, whether they approve of them or not, unless or until
they are set aside. . . . Only very rarely could it be appropriate for the
executive to act in a way which threw doubt on a judicial decision.
These statements, which reach to the heart of the constitutional division of
powers under the UK constitution, seem to me to be incompatible with
Nicols alternative vision.
43 Nicol, Law and Politics After the Human Rights Act [2006] P.L. 722 at p.744. See also
Campbell, [2004] P.L. 33, p.99 provisional determinations.
44
347 U.S. 483 (1954).
45 358 U.S. 1 (1958) at 2425. The quotation reference is President Andrew Jacksons 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 of

the courts, and this power remains. Ideally, decisions of courts should not be
overruled on the ground that the courts got the law wrong, but because the
effect of the law conflicts with the requirements of expediency or moral views.
But the important point is that government and Parliament should not treat
court decisions as if they are contestable opinions to be disregarded, overruled
or evaded wherever the government or Parliament would have applied or
interpreted the law differently.48 Likewise, as we have seen, judges themselves
should not decide cases on the basis that they are making a provisional
determination of what legal principles require.
Although it is not possible to consider the matter here in any detail, it must
also be doubtful whether parliamentarians and government ministers would
either want to engage in a debate with the courts or would do so particularly
well; certainly not on a regular basis. The reaction of government ministers
to adverse judicial decisions is rarely charitable and, moreover, frequently so
misrepresents the judgment that one hopes they have not had time to read
it and have relied instead on a brief from a political adviser. The reaction of
David Blunkett when Home Secretary to the judgment of Collins J. in Q v
Secretary of State for the Home Department,49 in which he held that governmental
decisions had the effect of unlawfully leaving asylum seekers destitute, is, whilst
not representative, possibly expressive of what many Ministers would like to
say 50 :
Frankly, Im personally fed up with having to deal with a situation where
parliament debates issues and the judges then overturn them, . . .
I dont want any mixed messages going out so I am making it absolutely
clear today that we dont accept what Justice Collins has said.
We will seek to overturn it. We will continue operating a policy which
we think is perfectly reasonable and fair.
It cannot be desirable for the government to be given licence to respond
routinely in such a knee-jerk, defensive and unreasoned way. Moreover, the
idea that politicians would engage in a calm, reflective and impartial debate
about the subject of legal cases on controversial topics is unreal. Nicols
48 Contrast however the statement made to the House of Commons by the Financial Secretary to the
Treasury, Mr MacDermot MP, on the second reading of the War Damages Bill following the decision
of the House of Lords in Burmah Oil v Lord Advocate [1965] A.C. 75 (considered below), suggesting that
the House of Lords got the law wrong: The object of this Bill is to restore the common law of England
and the law of Scotland to the position which was generally thought to exist before the decision and
to provide that about 12 cases now pending . . . before the court are disposed of on the basis of the
law 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: Butterworths
1997), 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 of
adequate engagement are even greater. As the Department of Constitutional Affairs Review of the
Implementation of the Human Rights Act, July 2006, found: The Human Rights Act has been widely
misunderstood by the public, and has sometimes been misapplied in a number of settings and a
number of damaging myths have taken route in the popular imagination (Executive Summary).
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Public Law
alternative vision would not only require a transformation of the judicial role
but also a transformation in the conduct of politics.
Judges as politicians
Nicol buttresses his argument for his alternative vision by arguing that over
the past 50 years there has been such an erosion of the distinction between
what judges do and what politicians do that judges have been recast as a
political faction.51 In my view, Nicol greatly overestimates the degree to
which judges have moved into political territory.52 Clearly, the justiciability
of human rights norms has made many more broadly-framed moral rights
subject to interpretation and enforcement by the courts. But let us not forget
that very many already were. There is no more broadly framed legal principle
that Lord Atkins neighbour principle, for example, which was established
in 1932.53 And almost as broad, in the field of public law, is the right of
natural justice, which we have on highest authority to be no more than
fair play writ large and judicially54 and fair play in action.55 Applying
broadly-framed moral principles as law is an established part of the judicial
function.
Nicol relies on a couple of interesting arguments to support his conclusion
that judges have become quasi-legislators. He suggests that the enforcement
of human rights norms leads to the use of obiter statements which he says
allows courts to transmit a broader message than required to determine the case
before them. He points to the fact that in the Pro Life Alliance case56 several of
their Lordships expressed a view on whether a taste and decency requirement
for transmission of party political television broadcasts was compatible with
Art.10 of the Convention, despite the fact that the issue for the court was
only whether the requirement had been properly applied by the BBC.57
The use of judicial statements that go beyond the issues in the case, and
often also the argument before the court, is a dialogic technique in the
sense that it is a technique of judging that does not resolve any issue of
principle. It signals to public officials the preliminary view of the judiciary
as to what the law requires on a matter that is unclear or unsettled and it
guides their future conduct, not least in implementing the decision of the
court. It would, however, be necessary to see far more evidence before one
could 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.743
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 and
Nicolson, 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 despite
the fact that it lay outside the ambit of the appeal.
52
they otherwise do (or have previously done) when they are enforcing human
rights norms. This is, after all, also an established judicial technique. Take
Donoghue v Stevenson again. The issue in that case was simply whether under
Scots law a manufacturer could owe a duty to a purchaser of its product,
to whom it caused personal injury, in circumstances where there was no
possibility of intermediate inspection of the product. It was also a question
with very wide significance for social policy and public health. Both these
points 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 and
companies to each other in the broadest possible terms that went many miles
beyond the narrow issue in the case.59 Another example, closer to the Pro
Life Alliance case perhaps, can be found in Burmah Oil v Lord Advocate.60
The issue was whether compensation must be paid where private property
is 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 signal
to 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 property
should 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 the
enemy.62
58 Lord Atkin put it thus: My Lords, the sole question for determination in this case is legal: Do the
averments made by the pursuer in her pleading, if true, disclose a cause of action? I need not restate
the particular facts. The question is whether the manufacturer of an article of drink sold by him to a
distributor, in circumstances which prevent the distributor or the ultimate purchaser or consumer from
discovering by inspection any defect, is under any legal duty to the ultimate purchaser or consumer to
take reasonable care that the article is free from defect likely to cause injury to health. I do not think a
more important problem has occupied your Lordships in your judicial capacity: important both because
of its bearing on public health and because of the practical test which it applies to the system under
which it arises. The case has to be determined in accordance with Scots law; but it has been a matter
of agreement between the experienced counsel who argued this case, and it appears to be the basis of
the judgments of the learned judges of the Court of Session, that for the purposes of determining this
problem the laws of Scotland and of England are the same. Donoghue v Stevenson [1932] A.C. 532 at
578579.
59 The rule that you are to love your neighbour becomes in law, you must not injure your
neighbour; and the lawyers question, Who is my neighbour? receives a restricted reply. You must
take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to
injure your neighbour. Who, then, in law is my neighbour? The answer seems to bepersons who
are so closely and directly affected by my act that I ought reasonably to have them in contemplation as
being 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 feature
of common law litigation, namely, the effect of concessions made in one case on the future development
of the law, as well as the appropriateness of judges commenting on concessions when they have not
heard argument on the point (see, e.g. counsels concession in Donoghue v Stevenson [1932] A.C. 532).
Nothing is, however, established in law by concession and any judicial approval of a concession
made by a party merely serves to indicate to practitioners the likely outcome of future litigation on the
point. The point also goes nowhere for Nicols argument, because it does not support the argument
that 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 straying

into unnecessary territory to provide guidance in the human rights context,63
there are also contrary examples. Notably, in David Shaylers appeal from
a ruling on his prosecution under the Official Secrets Act 1989, the House
of Lords refused the request made by intervening newspaper and television
organisations for the Committee to provide guidance on the scope of the
right to journalistic freedom of expression, despite hearing argument on the
point.64 On reading the cases, it seems to me that judgments given under the
HRA reveal the courts applying the traditional common law methods and
techniques.
Nicol also argues that judges today travel far beyond the words used by
Parliament to defend individual rights when interpreting statutes. However, it
is wrong to suggest that this has not long been an established characteristic of
the courts approach to statutes when important personal interests are at stake,
albeit less frequently resorted to.65 Courts have long said that they will supply
the omission of the legislature to protect rights such as natural justice66 ; and
will refuse to follow the clear implication of a statute where it would deny a
fundamental right,67 or authorise a tort.68 Dicey described the approach of the
courts in such cases as legislative: the courts limit or extend a statute in a process
that departs from the interpretation that Parliament would have given to the
provision had it been called upon to decide the case.69 We should also recall
that the most radical example of the courts departing from the plain meaning
of 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 to
go further than they have done at common law. Importantly, however, the
courts have treated their function under s.3 as essentially an extension of
their approach at common law, and that s.3 demarcates and preserves the
constitutional boundary between the courts and Parliament.71 The cases
where the judges have pushed their interpretive power furthest under the
HRA are those concerning access to justice: but this is also the case at common
63 Perhaps most extraordinary are the comments madewithout hearing argument on the pointby
Lord Hope and Lord Brown on discrimination and racial profiling in the exercise of stop and search
powers 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 interesting
submissions on behalf of the Newspaper Society, nine newspapers and two television channels. But this
appeal calls for decision of no issue directly affecting the media and I think it would be undesirable to
attempt to give guidance in the context of this appeal at [30], per Lord Bingham, and [117], per Lord
Hutton.
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. 750
68 Morris v Beardmore [1981] A.C. 446.
69 Introduction to the Study of the Law of the Constitution, 10th edn (London: Macmillan, 1959),
pp.413414 and Lectures in the Relation between Law and Public Opinion in England During the Nineteenth
Century, 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 of

the judicial function when it comes to interpreting statutes. Judges have not
accepted a role as legislators or politicians.
Lastly, Nicol suggests that the courts are today engaged in adjudicating
on more controversial issues than in the past.73 This may be the case, but a
reference to Wednesbury74 is very far from establishing it. It is perhaps significant
that whereas Parliament overruled two of the most constitutionally significant
cases of the 20th centuryBurmah Oil, by the War Damages Act 1965 and
Anisminic, by the Foreign Compensation Act 1969,75 Parliament has not
yet seen fit to overrule a single decision under the HRA. There are a string
of other public law cases with significant political implications in the same
era.76 Nor should we forget that the extension of the courts jurisdiction in
the decades leading up to the creation of judicial review procedure was itself a
highly political issue.77 And perhaps the most controversial cases of all time are
yet 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 contested
nature of human rights norms. There is in fact a very substantial degree of
consensus about their scope and meaning within the law. For instance, it is
perfectly clear that a confession extracted by the administration of electric
shocks has been obtained by torture and, to take an everyday example, that the
search of a persons home amounts to an invasion of their right to privacy which
must be justified. The arguments for treating judicial decisions as provisional
and contestable can have no application in such cases.
Therefore although it is undeniable that the subject-matter of judicial
decisions 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 Foreign
Compensation 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 of
course, 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 in
Anisminic had settled in. It is not therefore clear what sort of claims Nicol has in mind. (The juridical
concept of public law was also introduced into English law in the 1970s, although the term has been
used 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.4758.
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 v
Rimmer [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 the
comments of Lord Reid in Ridge v Baldwin [1964] A.C. 40 at 7273: We do not have a developed
system of administrative lawperhaps because until fairly recently we did not need it. So it is not
surprising that in dealing with new types of cases the courts have had to grope for solutions, and have
found that old powers, rules and procedure are largely inapplicable to cases which they were never
designed 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 considerably

more political or contestable than cases that were decided by the courts
in the past. Furthermore, it is insufficient for weak dialogians to argue only
that courts have to adjudicate upon controversial issues more regularly than in
the past, because that would establish no more than that courts today more
regularly perform a judicial function that they have always performed. In
any event, whether or not courts are dealing with more politically sensitive
subject-matter these days, they should still go about deciding cases in the same
way, and the government, Parliament and the public should continue to accept
that the courts are the final arbiters on what the law requires.
Conclusion
In conclusion, the arguments for a radical reconceptualisation of the function
of the courts are not, at least as presently articulated, at all persuasive. In an age
of rights it falls to judges to resolve disputes of legal principle, and they should
decide cases on this basis. A judges interpretation of the law should not differ
because there is a prospect of Parliament or the government correcting his or
her mistakes. At the risk of oversimplification, the short point is this: it is not the
function of courts to advance argument but to hear it. The mirror image is that
government and Parliament should not treat judicial decisions as contestable or
provisional, however politically inconvenient or morally debatable they may
consider them to be. Parliament should accept the courts interpretation of law
subject only to its power to overrule the courts where the law needs to be
changed. There is a place for constitutional dialogue but it is not to be found
in recasting the courts as a privileged political pressure group.
The Pervasiveness of Polycentricity 101

Jeff A. King*
Keble College, University of Oxford
Judicial decision-making; Jurisprudence; Justiciability; Statutory

interpretation; Tax; United States
Lon Fullers claim that polycentric disputes are unsuitable for adjudication
has had a powerful impact on the English law of justiciability. Fuller conceded, as many have noted, that polycentricity is a matter of degree and that
counter-examples can be admitted without collapsing the concept. But this
article suggests that not only do counter-examples exist, but that the law is
rife with them, and that the existence of such examples forces us to refine
or reject Fullers doctrine. The issue is important because the argument that
polycentric issues are non-justiciable is most frequently raised in the context of
resource allocation disputes. Such disputes frequently involve claims to health,
education, social security or housing resources. As such, they often concern
internationally recognised human rights claims of the highest order. But many
say that social rights should not be legal rights because they would require judges
to adjudicate polycentric disputes. This article suggests we need to reconsider
this objection. It shows how polycentricity is a pervasive feature of adjudication, discussing a number of examples but choosing to focus principally on an
area that is infrequently discussed in public lawthe law of taxation. It is shown
that tax law is heavily polycentric but that there is an accepted role for courts
in protecting citizens against the spectre of unfettered public power. Demonstrating the pervasiveness of polycentricity does not alone make the case for
rejecting the wisdom of Fullers doctrine, a good deal of which appears sound.
But it helps illuminate both how the concept is invoked selectively, and how
it cannot without further refinement be relied upon to justify judicial restraint.
Fullers concept of polycentricity and the limits of adjudication
According to Lon Fuller, a polycentric problem is one that comprises a large
and 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 Hinarejos
Parga, Vanessa Mak and the Editor of Public Law for helpful comments on earlier drafts. I am particularly
grateful to Graham Gee for his exceptional contribution.
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one factor produces an incalculable series of changes to other factors.1 Such

relationships have interacting centresthe points where the strands of the
web intersectwhere different parties interact with each other by means of
negotiation, exchange, or in other ways.2 A problem having a profusion of
such interacting centres is one that is many-centred, hence, polycentric.
Fuller used the now well-known image of a spiders web to convey the idea
of how pulling on one string would distribute new and complicated tensions
throughout all of the other strands of the web.
The perfect example of a polycentric task is how to set an appropriate price or
wage. Setting the price of a commodity or the wage of an employee can affect
supply or demand for the commodity or employment, which in turn affects a
multitude of other costs and relationships.3 And each of the separate consequential effects of the price determination (for example, lay off, decreased demand for
the commodity), in turn affects networks of relationships associated with that
factor (for example, production, transport, insurance, advertising), and so on.4
Fuller derived the idea from natural scientist cum philosopher Michael
Polanyi, who used it to explain why he believed the principle of self-coordination in markets is a necessary antidote to the insoluble problems of central
planning.5 Polanyi wrote that in the free market, [i]ndividuals . . . evaluate by
their independent mutual adjustments the polycentric task of optimum allocation of resources and distribution of products.6 Polanyis concern demonstrates
that polycentric tasks pose difficulties for managers and administrative decisionmakers as well. Polanyis work was essentially libertarian in nature.
For his part, Fuller aimed to show what kinds of social tasks are best assigned
to courts, and those inherently unsuited for adjudicative disposition and thus
best left to legislatures or the market.7 In so doing, he developed a theory of
adjudication:
This whole analysis [of the optimum and essential conditions for the
functioning of adjudication] will derive from one simple proposition,
namely, that the distinguishing characteristic of adjudication lies in the
fact that it confers on the affected party a peculiar form of participation
in the decision, that of presenting proofs and reasoned arguments for a
decision in his favor . . . Whatever destroys that participation destroys the
integrity of adjudication itself.8
1 L. Fuller, The Forms and Limits of Adjudication (19781979) 92 Harvard Law Review 353. The
paper was a draft published posthumously. As explained on the editors opening note on the paper, the
first draft was written in 1957, and revised in 1959 and 1961. Fuller, as with Polanyi before him, never
gave a succinct definition of what a polycentric task was.
2 Fuller, The Forms and Limits of Adjudication (19781979) 92 Harvard Law Review 353 at p.397.
4 Fuller, The Forms and Limits of Adjudication (19781979) 92 Harvard Law Review 353 at
pp.394395 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.
Thus for Fuller the essence of adjudication is the mode of participation it

accords to the affected party.9
Issues of participation are intrinsically connected with issues of complexity.
Indeed, many feel that polycentricity is foremost about complex subjectmatter.10
But something can be complex without being polycentric. Scientific
questions arising in court can be enormously complex without being
polycentric in any way; the answer may affect one person only. But
polycentric issues are often complex in the sense of understood with
great difficulty, because it is difficult to know who will be affected by
a change in one relationship in the interlocking scheme. Therefore, it is
difficult to know even who should be called to the table to discuss (or
allowed to intervene in the proceedings), since the network of cause and
effect relationships is scarcely comprehended.11 Of course, this issue applies
no less to legislative and bureaucratic resolution of polycentric issues, which
was Polanyis concern, though often forgot in legal discussions. The great
difficulties faced by administrative decision-makers who take decisions based
on limited information and under difficult time constraints formed the central
subject of Herbert Simons 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) give
rise to unintended consequences, (2) encourage judges to try unorthodox
solutions such as consultations of non-represented parties, guessing at facts etc.,
and (3) prompt the judge to recast the problem in a judicially manageable
form.14 Unintended consequences arise to an unacceptable level chiefly because
the adversarial adjudicative process often limits the information considered by
the court to that provided by represented parties. Abram Chayes described this
adversarial structure as bipolar, and as an organized contest between two
individuals. . ., diametrically opposed, to be decided on a winner-takes-allbasis.15 Chayes argued that it was a view of adjudication that failed to account
for the emergent American public law litigation paradigm.
Fuller felt that polycentric problems ought to be solved by managerial
direction and contract (reciprocity).16 He does not elaborate much on the
9 Fuller, The Forms and Limits of Adjudication (19781979) 92 Harvard Law Review 353 at p.365;
see also O.M. Fiss, The Supreme Court 1978 Term: Foreword: The Forms of Justice (1978) 93
Harvard Law Review 1 at p.40 (calling participation the core of Fullers theory).
10 See, e.g. the Supreme Court of Canadas 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.xxviiixxxi, 3841, 8081, 240244.
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.
104
Public Law
former, though he does give the example of a baseball manager who handles
problems of enormous mathematical complexity through a good deal of
intuition.17 However, true to Polanyis concern, he believed polycentric
issues would often work themselves out through negotiation and mutual selfadjustment in contract,18 within which he includes parliamentary bargaining
and trade-offs.19 Although he sees this role for politics, he is also clear that
voting by majority rule cannot resolve polycentric problems.20
Fullers idea in context
Fuller was a key contributor to the legal process school of jurisprudence in
the post-World War II United States, one which influenced a generation
of American legal scholars and judges.21 Along with Hart and Sacks The
Legal Process, Fullers The Forms and Limits of Adjudication was considered
one of the foundational documents in this school.22 Three leitmotifs sound
throughout the approach: the belief in courts as a forum of reason, rational
argumentation and neutral principles; the centrality of process in ensuring
the 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 the
state.23
In the aftermath of Lochner v New York,24 the belief in strong judicial
restraint was de rigueur among progressive lawyers and legal process scholars
in particular.25 There was a widespread belief in a very strong American
post-war consensus on political ideology and faith in the institutions of
government.26 Notwithstanding the New Deal sympathies, there was also
a strong undercurrent of libertarian27 and laissez-faire28 ideas about the
relationship between government, markets, and society. Indeed, there is a
certain irony that left-leaning scholars in Britain tend to emphasise the idea
of polycentricity, when it has been deployed most vigorously by libertarian
17 Fuller, The Forms and Limits of Adjudication (19781979) 92 Harvard Law Review 353 at p.398,
see also p.403.
19
Fuller, The Forms and Limits of Adjudication (19781979) 92 Harvard Law Review 353 at p.400.
20 Fuller, The Forms and Limits of Adjudication (19781979) 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 introductory
essay 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 of
American 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.19; Eskridge, Jr and Frickey, p.xcvi.
24 198 U.S. 45 (1905).
25 Duxbury, Patterns of American Jurisprudence, pp.233234.
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.cxiicxiii.
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 government
led to one of the major critiques of the process school.30 The principle
of institutional settlement and the idea of neutral principles came to be
regarded as an apology for state power and a defence of the status quo.31 One
of the most important seeds of this critique was sown by the Brown v Board
of Education desegregation decision of the US Supreme Court.32 Many legal
process scholars supported the decision morally, but found it difficult to square
with the tenets of the school.33 Neither The Legal Process nor The Forms and
Limits of Adjudication so much as address the case and its progeny, a glaring
omission for critics and supporters alike.34
The impact of Brown and the recognition of the defects of the democratic
system led several thinkers who were influenced considerably by the process
school to take new and markedly different directions. Fullers concept of the
limits of adjudication played either no role or was impliedly or forthrightly
rejected in the writings of Owen Fiss, Abram Chayes, John Hart Ely, Richard
Posner, and Ronald Dworkin.35 Even in Richard Stewarts seminal article
on the interest-representation model of administrative lawadvancing a thesis
to which Fullers idea bore the most direct relevancethere is scarcely any
mention of the idea.36 It is furthermore notably absent from Neil Komesars
29 F. Hayek, Law, Legislation and Liberty: A New Restatement of the Liberal Principles of Justice and Political
Economy, Vol.2 (Routledge, 1998), p.15 (considering Polanyis distinction between monocentric and
polycentric 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 (using
the idea of polycentricity as a foundational concept in support of the radical privatisation of public
services). See also M. Polanyi, The Determinants of Social Action in E. Streissler et al., eds, Roads
to Freedom: Essays in Honour of Friedrich A. von Hayek (Routledge & Kegan Paul, 1969), pp.145179
(comparing polycentricity and Hayeks 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.263264; Eskridge, Jr and Frickey, pp.cxviiicxxi.
31 C.R. Sunstein, Lochners Legacy (1987) 87 Columbia Law Review 873; see also Duxbury, Patterns
of American Jurisprudence, p.276.
32 347 U.S. 483 (1954).
33
Eskridge, Jr and Frickey, pp.cvicxiii (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 occurredan erasure of some portion of the history of
procedure).
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 at
pp.39 et seq. offers the most effective rebuttal of Fuller, while Chayes, The Role of the Judge in Public
Law Litigation (1976) 89 Harvard Law Review 1281, demonstrates the demise of the bipolar model. In
Economic Analysis of Law, 6th edn (Aspen Publishers, 2003), Posner advocates an analysis of law perhaps
most radically at odds with Fullers prescriptions. John Hart Elys theory in Democracy and Distrust: A
Theory of Judicial Review (Harvard University Press, 1980), permits highly polycentric determinations,
and in A Matter of Principle (Clarendon Press, 1986), pp.5969, Dworkin rejects Elys theory as unduly
restrictive of the appropriate constitutional judicial role. The idea is also radically at odds with legal
realist pragmatist and critical legal studies approaches to adjudication.
36 R.B. Stewart, The Reformation of American Administrative Law (1975) 88 Harvard Law Review
1669 at p.1789 (mentioning the word once, and proceeding, at pp.17901802, to pronounce a dead
106
Public Law
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 American
legal thought.38
Polycentricity and justiciability in English law
Regardless of its currency in American law, the concept of polycentricity
continues to exert a powerful influence on the English law of justiciability and
judicial deference. Geoffrey Marshall described the idea of justiciability as an
inquiry into the aptness of a question for judicial resolution.39 The concept
has a fact-stating sense (i.e. whether the law recognises or denies jurisdiction to
adjudicate the question), and a prescriptive sense (i.e. whether a court ought to
adjudicate a given issue).40 Lorne Sossin further breaks down the prescriptive
sense into an analysis of the ideas of institutional capacity and institutional
legitimacy.41
One can see the traces of Fullers ideas in Lord Diplocks speech in Council
of Civil Service Unions v Minister for the Civil Service, where he addressed why
certain decisions were not appropriate for adjudication42 :
Such decisions will generally involve the application of government
policy. The reasons for the decision-maker taking one course rather than
another do not normally involve questions to which, if disputed, the
judicial process is adapted to provide the right answer, by which I mean
that the kind of evidence that is admissible under judicial procedures and
the way in which it has to be adduced tend to exclude from the attention
of the court competing policy considerations which, if the executive
discretion is to be wisely exercised, need to be weighed against one
anothera balancing exercise which judges by their upbringing and their
experience are ill-qualified to perform. . .
end the suggestion that political systems can provide effective representation of interests affected by
agency regulation).
37 N.K. Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy
(University of Chicago Press, 1994); Laws 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 Fullers idea, see B.E.
Armacost, Affirmative Duties, Systemic Harms, and the Due Process Clause (1996) 94 Michigan
Law Review 982 at pp.10031009. More recent scholarly attention has focused on showing that
polycentricity is not only limited to public law litigation: C.F. Sabel and W.H. Simon, Destabilization
Rights: Why Public Law Litigation Succeeds (2004) 117 Harvard Law Review 1015 at pp.10561059,
1060 et seq.; or has marshalled fresh evidence demonstrating the incompatibility of the doctrine with
contemporary institutional reform litigation: E.L. Rubin and M.M. Feeley, Judicial Policy Making
and Litigation Against the Government (2003) 5 University of Pennsylvania Journal of Constitutional Law
617.
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.267268. 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.233
et 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 before
the court echoes Fullers concern with resolving polycentric issues in a bipolar
setting. Court of Appeal and High Court judges have applied the concept in
name,43 and elsewhere similar concerns have been raised in different words.44
While the House of Lords has generally avoided employing the concept by
name, the Privy Council recently did so to justify curtailing judicial review
of prosecutorial discretion.45 At least one judge on the European Court of
Human Rights has employed the idea,46 and it is used explicitly and commonly
by the Supreme Court of Canada to assist in determining the correct standard
of judicial review in administrative law.47
Several prominent legal scholars in Britain have endorsed Fullers analysis as
a guide to determining the justiciability of issues. Several see a direct, general
link between polycentricity and justiciability.48 J.W.F. Allison in particular has
provided a valuable analysis of polycentricity and its implications for public
law.49 While Allison has identified a number of important problems with
Fullers analysis, he also considers the doctrine to be a convincing reason for
making procedural reforms in public law.
The idea has been tied to a variety of familiar themes. Some have singled
out the notion of need (and planning disputes) as being polycentric,50 while
others have linked the idea to the commonly acknowledged need for judicial
deference to administrative expertise.51 It has been offered to determine the
justiciability of issues arising in the adjudication of negligence claims against
public authorities.52 Yet most invoke Fullers idea most often to support the
claim that resource allocation issues are or ought to be non-justiciable. Stanley
de 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 All
E.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 it
also 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.242243; C. Harlow and R. Rawlings, Law and Administration,
2nd edn (Butterworths, 1997), pp.598602; P. Cane, Administrative Law, 4th edn (Oxford: OUP,
2004), pp.5557; 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, Fullers 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 Distinction
in 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.213215.
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.3740.
108
Public Law
Feldman have all written that the allocation of scarce resources is a polycentric
task and therefore unsuitable for adjudication.53 However, while those who
have focused more directly on the subject of resource allocation in public law
may (or may not) acknowledge the issue, none have endorsed the idea as a
conceptual framework for assessing justiciability.54
Nearly all the studies referred to above, save those of Trevor Allan and
notably of J.W.F. Allison, simply adopt Fuller without critical assessment.
The soundness of Fullers position is simply accepted, or in the case of
Allan and Allison, analysed and then accepted in large measure. But more
recent developments suggest that cracks may be appearing in the edifice
long since abandoned in America. First, the more nuanced discussions
of resource allocation refuse to endorse the concept as determinative.55
Secondly, certain scholars who formerly advocated the idea have recently
placed less emphasis on it. Allan, for instance, has retreated somewhat from
his more unqualified earlier endorsement of the idea.56 Jowells recent
work on judicial deference has put the idea in the background,57 or
failed to mention it at all.58 Allisons nuanced discussion, by far the most
sophisticated, falls quite short of advocating polycentricity as a bright-line test
for justiciability.
Notwithstanding these growing tensions, most public law scholars continue
to accept, in varying degrees, that Fullers idea has important implications for
the 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.311312; T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law
(Oxford: OUP, 2001), pp.188192; D. Feldman, Civil Liberties and Human Rights in England and Wales,
2nd edn (Oxford: OUP, 2002), pp.229230.
54 J.A. King, The Justiciability of Resource Allocation (2007) 70 M.L.R. 197 (no discussion
of the idea); K. Syrett, Opening Eyes to the Reality of Scarce Health Care Resources? R (on the
application 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 conception
of public laws function . . .); K. Syrett, Impotence or Importance? Judicial Review in an Era
of Explicit NHS Rationing (2004) 67 M.L.R. 289 at p.295 (noting the pervasive assumption) and
p.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 17
of 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 a
Global Context: International and Comparative Perspectives (Cambridge: CUP, 2002), p.153 (no mention);
E. Palmer, Resource Allocation, Welfare RightsMapping the Boundaries of Judicial Control in
Public Administrative Law (2000) 20 O.J.L.S. 63 (no mention); D. OSullivan, The Allocation of
Scarce 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 of
tort liability of public authorities, Paul Craig both avoids the use of the concept and warns against a
simplistic, categorical view about the justiciability of resource allocation: Administrative Law, 5th edn
(Sweet and Maxwell, 2004), pp.897898.
55 ibid.
56 Contrast Allan, Constitutional Justice, pp.188192 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 adjudication

respect this proposed boundary already. It is that assumption that is now ripe
for challenge.
Polycentricity as a pervasive feature of adjudication
Fuller conceded that polycentricity is a common feature of the law and its
relevance depends on its degree.59 His reply was that [i]t is a question
of knowing when the polycentric elements have become so significant and
predominant that the proper limits of adjudication have been reached.60 This
idea of degree is often quoted, but it seems that some commentators fail on
the one hand to follow through on its implications (Allan), and others fail to
mention it at all (De Smith et al., Feldman).61 But even accepting this notion of
degree, Fullers idea still faces many familiar counter-examples. Such examples
abound 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 accepted
the need for the desegregation decrees of the mid-1950s, though emphasised their serious moral drain on the integrity of adjudication.63 Other
landmark constitutional and administrative law cases including the Belmarsh
Prison case,64 Anisminic,65 Bush v Gore,66 the Canadian Patriation and Secession
references67 have all involved topics of extraordinary polycentric dimensions.
In each case there are typically weighty reasons for which the courts are willing
to engage in polycentric subject-matter. There are also of course the more
controversial judicial review cases which doubtless involved the adjudication
of heavily polycentric issues.68 European Community law as developed by
the European Court of Justice is perhaps the most strikingly polycentric. The
Court has created private rights of action,69 routinely evaluates the legitimacy
59
Fuller, The Forms and Limits of Adjudication (19781979) 92 Harvard Law Review at p.397.
Fuller, The Forms and Limits of Adjudication (19781979) 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 now
also 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] 2
A.C. 532 at [27] (Lord Steyn).
63
Allison, Fullers 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.cvicxiii.
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 (establishing
the 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
60
110
Public Law
and proportionality of public policy restrictions on trade and competition,70

and decides the meaning of terms that necessarily have profound implications
for the entire Community market.71
It may be that every leading private law case involves the resolution of a
heavily polycentric problem. Fuller was aware of this issue, as his treatment
of contract law confirms. Fuller was a professor of contract law72 and viewed
contract as a fundamental means of social ordering.73 He thus acknowledged
the fact that judges regulated important areas of the market:
The fact that an adjudicative decision affects and enters into a polycentric
relationship does not of itself mean that the adjudicative tribunal is moving
out of its proper sphere. On the contrary, there is no better illustration
of a polycentric relationship than an economic market, and yet the laying
down of rules that will make a market function properly is one for which
adjudication is generally well suited.
Here Fuller admits that courts can engage polycentric disputes if they are well
suited for it. This seems sensible, but the tenor of his paper is that the concept
of polycentricity should guide our analysis of what courts are well suited for.
This potential inconsistency aside, we must evidently ask why courts should
be involved notwithstanding the presence of polycentric issues. He seeks to
explain the case of contracts:
The working out of our common law of contracts case by case has
proceeded through adjudication, yet the basic principle underlying the
rules thus developed is that they should promote the free exchange of
goods in a polycentric market. The court gets into difficulty, not when
it lays down rules about contracting, but when it attempts to write
contracts.74
The distinction between creating rules about contracting and
contractspresumably procedure versus substantive rulesis
tenuous. Rules determining the enforceability of contracts may
determine content, reflect substantive notions of fairness, and
writing
arguably
in effect
embody
liability). See also Cases C 46 & 48/93Brasserie du Pecheur SA v Germany and R. v Secretary of State for
Transport Ex p. Factortame (No.3) [1996] E.C.R. I-1029.
70 Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung f
ur Branntwein [1979] E.C.R. 649
(establishing that commodities lawfully produced in one Member State are presumptively marketable in
others); Case 112/84 Humblot v Directeur des Services Fiscaux [1985] E.C.R. 1367 (finding that Frances
high flat tax on cars whose engines have power ratings above 16CV was an indirectly discriminatory
tax); Case 178/84 Commission v Germany [1987] E.C.R. 1227 (rejecting as unsupported by sufficient
evidence Germanys 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 measures
equivalent 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 Commissions 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.187206.
74 Fuller, The Forms and Limits of Adjudication (19781979) 92 Harvard Law Review 353, at
p.404.
important policy choices to a significant extent.75 In any case, the doctrines

of unconscionability, disclosure requirements on contracts of adhesion,
prohibitions on penalty clauses, and the prohibition of contracts against public
policy may all be regarded as attempts by courts to write contracts. Contract
law these days seems almost as concerned with protecting consumers as is
it is about promoting free exchange,76 and the role of courts in applying
open-textured standards such as reasonableness, good faith and fairness has
greatly expanded.77 The fact that adjudication has worked relatively well in
developing and applying substantive contractual rules shows that there must be
more to the question of determining the appropriateness of the judicial role
than the polycentric nature of the problems it confronts. This is all the more
obvious given that the overwhelming majority of states use legislation and civil
codes to regulate contractual relationships.
The law abounds with other examples of courts adjudicating polycentric
issues. The law of tort is one such example, particularly American law
of products liability,78 in which plaintiffs are invited to demonstrate an
economically feasible reasonable alternative design.79 Neil Komesar has
illustrated how nuisance law gives rise to heavily polycentric issues (though
in the process of suggesting alternatives to adjudication),80 while Nick Barber
makes the point by reference to British competition law.81 Owen Fiss pulls no
punches: It would probably include all judge-made law, and the doctrine of
precedent itself.82
The case of tax law
It is helpful to examine tax law for two reasons. First, it shows that the
judges often adjudicate highly polycentric disputes in tax cases without secondguessing their competency to do so. Secondly, judges view themselves as
performing an important and essential role in their appellate and supervisory
jurisdictions, 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.26; D. Kennedy, Form and Substance in Private Law Adjudication (1975) 89 Harvard Law
Review 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 polycentric
norms).
76 Lord Steyn, Contract Law: Fulfilling the Reasonable Expectations of Honest Men (1997) 113
L.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 Defect
Litigation: Advancing Directed Verdict Practice in the Law of Torts (1982) 57 New York University
Law Review 521 at pp.551 et seq. (calling on courts to establish a polycentricity quotient in design
defect litigation).
79 Restatement (Third) of Torts (Products Liability), 2(b) (1997).
80 Komesar, Laws 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 statutory

interpretation or in the exercise of administrative discretion. They have
demanded the rule of law in their interaction with tax authorities, and for the
most part have received it. The contrast between such cases and those involving
judicial review of social welfare allocation is strong.83 This contrast exposes the
inconsistent way in which polycentricity is offered as a justification for limiting
judicial review. The reasons that courts play a protective role in tax cases are
also instructive. They highlight why the idea of a bureaucratic organ making
final and incontestable determinations of peoples rights can appear odious. It
shows that where certain values are at stake, courts will apply stricter standards
of review than they ordinarily do where such values are not at stake, come
what may for the Treasury. These reasons may be instructive in cases involving
discretionary allocative decision-making, where peoples fundamental human
rights, rather than corporate tax liability, are often at stake.
Before commencing this analysis, it is helpful to address two possible
objections to the entire project. Some may view the existence of polycentricity
in tax cases as a reason for curtailing judicial activity in those cases too. It is
beyond the scope and interest of this article to rebut this argument.84 This
section would rather be addressed to those who would affirm the role of the
judiciary in tax cases while casting doubt on it in the realm of social welfare
allocation. Secondly, some may attach great significance to the fact that in
tax cases courts restrain the government from taking things away from people
(enforcing negative rights), rather than forcing it to hand out benefits (enforcing
positive rights). This point is only relevant in so far as it exposes the substantive
moral values behind what people think courts ought to be doing. In both cases,
courts make determinations affecting the interests of several unrepresented
persons. Furthermore, the value choices raised by this argument are themselves
suspect. There is little reason to think that those seeking to deflect tax liability
through the courts (typically corporations and wealthy individuals) have a more
important interest at stake than do the beneficiaries of government revenue.
To suggest that law privilege the status quo ante against state intervention is
simply to give high priority to the existing distribution of property. The effect
of this view is that the baselines for when state conduct becomes reviewable
in law are formed and sanctioned by common law traditions. Cass Sunstein
has 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 statutory
interpretation (see text to fnn.91115, below, especially fnn.114115), 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 review
for Wednesbury unreasonableness and enforcement of substantive legitimate expectations (see text to
fnn.134147 below). The key point of this section of the article is that tax law is rife with polycentricity
but the concept is not discussed.
84
Such claims may be right. But showing that polycentricity concerns should exclude courts from
tax 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 case
may plausibly be made.
85 Sunstein, Lochners Legacy (1987) 87 Columbia Law Review 873.
baselines should no longer be used reflexively in public law.86 The issues

arising in tax law are polycentric, and whether the court ought to exercise
review of them is a separate question raising its own complicated issues.
Taxation and polycentricity
Few tasks are more polycentric than the formation of taxation policy. It is of
course Parliaments responsibility under the Bill of Rights of 1689 to decide
upon 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 questions
that the Revenue wants clarified.88 As will be shown below, courts have
historically favoured the taxpayer and construed legislation narrowly. Yet due
to the growing sophistication of tax planning and Parliaments inability to stem
tax avoidance, courts have been called upon to play a greater role in preventing
tax avoidance. John Tiley suggests that courts have treaded cautiously in
developing this new role. He explains why:
A ruling as sought by one party may have unpredictable consequences
in that the ruling may be turned around so that while this scheme fails, a
reverse scheme, not before the court, will then be set up. In other cases it
may be that the taxpayer is arguing for a point of view which challenges
the prevailing orthodoxy and which, while good for that person or
scheme, will cause substantial difficulties for others if it succeeds.89
These issues echo directly Fullers concern with unintended consequences
and the lack of participation of affected parties. The interpretation of taxation
statutes can have significant ramifications for public revenue and on the
operation of markets or large transactions. Every high-profile case is likely
to spawn a new tax-planning product. The goals underlying tax legislation
are manifold, highly complex and interdependent with other social goals.
Generally, courts appear by comparison with the Revenue to be less competent
institutions for understanding the nature of such goals and best means for
accomplishing them. While a given court hears appeals and applications for
judicial review on tax matters occasionally, the Revenue and the General
and Special Commissioners (administrative tribunals who hear appeals on
tax assessments) deal with tax matters exclusively. The Revenue has a more
flexible range of powers to assess the likely revenue and thus redistributive
consequences of any particular action or interpretation. Indeed, the discretion
exercised 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 at
p.502.
87 The Commissioners for Inland Revenue and Customs Act 2005 amalgamated the Inland Revenue
and Her Majestys Customs and Excise into a single governmental department, namely, Her Majestys
Revenue and Customs (HMRC). For ease of reference and understanding of past case law, this section
shall refer to the Board or Revenue and the general conclusions reached apply to equally to the
HMRC.
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.310311.
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as noted by Tiley. Yet there are not widespread calls for Parliament to
recall the courts from this domain of law, likely for the reasons made
clear below. Indeed, the more vociferous calls have been for greater judicial
activism in addressing the problem of tax avoidance.90 It is not suggested
here that courts pay no deference to the Revenue or tax tribunals. It is
clear that they do. But what becomes clearer in the following treatment
is that they do so far less than in review of public resource allocation
decisions.
Tax appeals and statutory interpretation
In his Hamlyn Lectures of 1981, Henry Monroe, then head of the Special
Commissioners, explained in detail the history of tax law in Britain.91 The first
Income Tax Act (1799) provided that aggrieved taxpayers could contest an
assessment by bringing a claim to commissioners appointed by the Revenue
from among laypersons. These officials are now known as the General
Commissioners, and are considered to be independent from the Revenue.
In 1842, the Special Commissioners were added as a new body with functions
that were administrative and quasi-judicial.92 For up to 75 years after the
introduction of the Income Tax Act of 1799, there was no right to appeal
from the determinations of these officials, and the process followed by the
General Commissioners was regarded to be more administrative than quasijudicial.93 It was not until the introduction of the appeal to the courts on
points of law in 1874 that courts were to be regarded as having any role
to play.94 Without delay, courts adopted a rule of statutory construction
that ambiguities in statutory provisions were to be resolved in favour of the
taxpayer. In the earliest leading case on statutory interpretation, Lord Cairns
held that:
. . . if the Crown, seeking to recover the tax, cannot bring the subject
within the letter of the law, the subject is free, however apparently within
the spirit of the law the case might otherwise appear to be.95
Another leading authority is Inland Revenue Commissioners v Duke of
Westminster, in which the House of Lords held that if a given document or
transaction is genuine, the court cannot go behind it to look to an underlying
substance.96 This position was later softened considerably in the Ramsay case,
but the attitude of courts towards taxpayers remains warm. Indeed, as Professor
Freedman 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).
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.910 (comparing it with the
administrative tribunals discussed in Harry Streets Justice in the Welfare State (Stevens & Sons, 1968)).
94
Monroe, Intolerable Inquisition? Reflections on the Law of Tax, pp.910.
95 Partington v Att Gen (1869) L.R. 4 E. & I. App. H.L. 100.
96 [1936] A.C. 1, HL.
92
those devising tax schemes: [m]any cases have been decided in favour of the
taxpayer recently.97 With this background in mind, it will be enlightening to
consider an example of interpreting a tax statute.
Inland Revenue Commissioners v Laird Group Plc98 involved a tax appeal in
which the House of Lords rejected the Revenues submission that a payment
of a dividend on ordinary shares was a transaction relating to securities
within the meaning of s.703 of the Income and Corporations Taxes Act
1988. In giving the leading speech in which all Law Lords concurred, Lord
Millett analysed the inconclusive authorities relating to the matter and then
turned his attention to the kind of relationship [between the transaction and
the securities] that Parliament had in mind.99 The meaning of the terms
was defined in s.709(2) of the Act as including transactions of whatever
description relating to securities. Their Lordships had held earlier that these
terms were to receive the the widest meaning.100 In the Laird litigation,
nearly every tribunal and court below the House of Lords answered the
question differently. In other words, there was substantial disagreement as to
the legal meaning of these words. Furthermore, it was widely assumed by
courts, the Revenue, and taxpayers that dividends were indeed transactions
relating to securities.101
Lord Millett placed emphasis on the fact that the word securities was
capable of a broad meaning, and that if the words at issue were interpreted too
broadly they would encompass certain types of transactions that in his view
should not be covered (such as payment of interest on a debenture). Secondly,
he held that Parliament intended to exclude liquidations of companies from
within the meaning of transactions relating to securities. He accepted the
submission that the reason for excluding liquidations from the definition was
that such a distribution was not an alteration of the shares or of any rights
attached to such shares, but was rather merely giving effect to the rights that
already existed. In other words, the sum belongs to them already; they receive
what is already theirs.102 He found that the position should be no different
while the company is a going concern.103
But the Court of Appeal had taken a different view over whether in fact
the two situations were analogous.104 It found that the shareholder had no
right to the dividends until declared by the directors. Lord Millett rejected this
reasoning by finding that by declaring a dividend, the directors effectively
release funds due to the shareholders from their [the shareholders] power to
retain 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-Avoidance
Principle [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 to
dividends in the suggested way.
The issue decided by the House of Lords was polycentric. Whether the
payment of a dividend on ordinary shares ought to be a tax advantage that can
be counteracted by the Revenue is a highly polycentric issue, with complex
and interdependent legal, market and Treasury consequences. The words of
the statute did not settle the matter in any reasonably objective way, so the
decision 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 statute
to Parliamentary intentions, and the nature and scheme of the Act, as well
as unstated or stated policy concerns, to resolve the issue. Deciding whether
payment of a dividend on ordinary shares ought to be a transaction relating
to securities within the meaning of a tax statute called for an application of
(perhaps weak) judicial discretion.107 Indeed, though perhaps some distance
from Lord Mustills considered judgment, Lord Diplock was without doubt as
to 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 authority
to explain what Parliament meant by the words that it used makes law as
much as if the explanation it has given were contained in a new Act of
Parliament.108
Bennion also acknowledges that Parliament delegates by implication the
power to work out meaning.109 This much being understood, it is important
to think about the subject-matter. Regarding the intention to be attributed
to taxing statutes generally, Professor Freedman points out that governments
use tax systems to try to achieve multiple objectivesmacro- and microeconomic and social management.110 Thus interpreting the purpose of a
portion of tax legislation will often, as in this case, require the court to take a
discretionary position on a highly polycentric matter.
One might argue that such cases involve statutory interpretation and that
some institution must determine the final meaning. Then why not the
Revenue? 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 some
social 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.
On judicial discretion, and on weak discretion, see R. Dworkin, Taking Rights Seriously
(Harvard University Press, 1977), pp.3139; see also H.L.A. Hart, The Concept of Law, 2nd edn
(Oxford: OUP, 1994), Ch.VII and pp.272276.
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.343344.
111 [1986] 1 A.C. 485, HL.
107
Lordships refused to quash the decision of a local authority finding that a small
room without facilities at a guest house constituted accommodation for a
family of four within the meaning of the Housing (Homeless Persons) Act
1977. Lord Brightman held, for all the Law Lords, that [w]hat is properly
to be regarded as accommodation is a question of fact to be decided by the
local authority. There are no rules.112 Later in his speech, he laid down the
principle for the courts to follow in similar cases:
Where the existence or non-existence of a fact is left to the judgment
and discretion of a public body and that fact involves a broad spectrum
ranging from the obvious to the debatable to the just conceivable, it is the
duty of the court to leave the decision of that fact to the public body to
whom Parliament has entrusted the decision making power save in a case
where it is obvious that the public body. . .are acting perversely.113
Setting aside the question of whether it was reasonable in Ex p. Puhlhofer
to consider the question as one of fact,114 this approach is notably different
from the one employed in tax appeals. It is also far from an unrepresentative
sample. This view of the respective role of courts and public authorities in
cases involving social welfare allocation has been widespread among judges.115
A strong judicial attitude of deference to social security tribunals on appealed
points of law appears equally at odds with the approach to tax tribunal
judgments.116
Judicial review of delegated legislation
In Commissioners of Customs and Excise v Cure & Deeley Ltd, Sachs J. held that
a regulation made under a general discretionary power was ultra vires.117 The
issues arose in the context of an action to enforce an assessed amount against
Cure & Deeley Ltd under a regulation. The validity of the regulation was
challenged in the course of the defence. The relevant statute empowered the
commissioners to:
112
[1986] 1 A.C. 485 at 517.

[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 temporary
accommodation should be able to sue the local authority for it); R. v Bristol Corp Ex p. Hendy [1974] 1
W.L.R. 498 at 502, CA (the duty to secure accommodation placed upon the local authority is a duty
to 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 waiting
for eviction order); R. v Inner London Education Authority Ex p. Ali (1990) 2 Admin. L.R. 822, QB
(councils 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 to
defining someones 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 (Hale
L.J., as she then was); Hinchy v Secretary of State for Works and Pensions [2005] UKHL 16; [2005] 1
W.L.R. 967 at [49], [57] (Baroness Hale).
117 [1961] 3 All E.R. 641, QB.
113
118
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. . . make regulations providing for any matter for which provision

appears to them to be necessary for the purpose of giving effect to the
provisions of this Part of this Act and of enabling them to discharge their
functions thereunder.
The impugned regulation permitted the commissioners, where a person
failed to provide a complete and accurate return as required by the relevant
regulations, to determine the amount of tax owing thereunder and make it
payable within seven days. Sachs J. accepted the submission for the defendants
that there was no more justiciable issue than the question whether or
not the subject was liable to pay tax.118 Indeed, the main reason for
which Sachs J. found the regulation ultra vires was that, in light of the
nature, object and scheme of the enabling statute, it unlawfully allowed the
commissioners to take on themselves the powers of a High Court judge
and decide issues of fact and law . . .[and to exclude] the subject from access
to courts . . ..119 It was a matter that went to the vital right to have the
independent decision of the courts on the question whether or not a tax is
due . . .,120 effectively substituting the rule of tax collectors for the rule
of law . . ..121 This was a case where the commissioners submitted, on
the strength of many authorities, that the statute used the widest words that
Parliament could use to confer unfettered discretion, and that they constitute
[the] most unambiguous, plain, and unqualified terminology . . ..122 The
commissioners argued that the non-judicial method for assessing the amount
when an incomplete return was submitted was based on a fiscal mechanism
of great originality that involved providing that registered persons would
keep books for a number of years.123 They would make confidential inquiries
of various customers who would not otherwise be willing to provide the
information if the proceedings were public (hence the reluctance to use
courts).124 Counsel added, [t[he whole system of collection of tax breaks
down when returns are false.125 Evidently there was much at stake. The
judge did not answer these arguments directly. Instead, he lamented the failure
to respect the principles of natural justice, highlighted the potential for an
abuse of power, and found, with palpable disdain, that the procedure was
capable of producing results adversely different . . . to those which would
result from a judicial determination . . ..126 He distinguished the authorities
submitted by the commissioners because they concerned emergency legislation
and 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.

[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.
119
it appears implicit that support was to be found in the authorities providing

for the normal right of the taxpayer to obtain the decision of a competent
court.128
Thus it appears in the case that the decision ultimately was a contest between
considerations about the rule of law and controls on the abuse of power on the
one hand, and the commissioners arguments about regulating taxation in the
public interest in the context of a broad statutory provision on the other. The
latter was, of course, a highly polycentric issue, situated in a highly polycentric
area. Sachs J. weighed up the arguments and found in favour of the former.
Similarly, the Divisional Court held in R. v Customs & Excise Commissioners
Ex p. Hedges & Butler Ltd that regulations empowering the commissioners to
compel the production of a companys business records were ultra vires.129 The
enabling legislation was in the widest of terms providing that the regulations
may contain such incidental or supplementary provisions . . . necessary or
expedient for the protection of the Revenue. The commissioners acted
under the regulations to compel the production of records pertaining to
non-excisable aspects of the applicants business. The applicant argued that
the net was cast too wide because it allowed the commissioners to impose
onerous requirements regarding matters that had nothing to do with their
proper jurisdiction. The commissioners replied that it is surprising what
part innocuous records may play in building up a complete picture of what
is going on.130 The commissioners also contended the powers conferred
by the enabling statute were unlimited. Yet Mustill L.J. rejected this and
found the regulation to be ultra vires because the power contended for
was a radically more extensive one than provided for in the enabling Act.
As such, it was not incidental or supplementary, as the enabling Act
provided.131 His reasoning was based on the fact that the relevant provision
of the enabling Act contained a list of specific powers together with a
residual power as quoted above. He held that the residual power to enact
regulations must be exercised in a manner incidental or supplementary to
the powers actually enumerated in the same section and not as broadly as
the legislation actually suggests. This argument is not without merit, but
it would be disingenuous to suggest that it was a clear logical deduction
of the meaning of the statute. It rather appears that in making such a
finding, he was implicitly rejecting the commissioners submission that the
power was required to build up a complete picture of which goods were
excisable.
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 fact
be construed intra vires in a manner that nonetheless still excluded the power
the commissioners sought to exercise. He was concerned about whether the
regulation could allow an excess of power, and found that:
128
[1961] 3 All E.R. 641 at 647, 651.

[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.).
129
120
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. . . it would . . . be an unreasonable consequence . . . of construing

the regulation in the wider meaning so as to require the preservation
[of records] with a view to production of his business records wholly
unconnected with the wines and spirits trade.132
In so finding, he added that he was fully aware that in reaching the
conclusion which I do I am rejecting the natural meaning of the words
. . ..133 Thus McNeill J. appears simply to have substituted his opinion on
whether compelling production of records unrelated to excisable goods was
necessary for assembling the complete picture to which the commissioners
attached much value. Or, rather, he substituted his view for whether such an
intrusive power, needed or not, could be exercised on the basis of such a vague
statutory grant.
Judicial review of revenue discretion
Courts have developed a fairly liberal doctrine of abuse of power under
which judicial review of Revenue conduct on grounds of Wednesbury
unreasonableness takes place.134 In R. v Inland Revenue Commissioners Ex
p. National Federation of Self-Employed and Small Businesses Ltd,135 the House
of Lords discussed various concepts of review in the taxation context. Lord
Diplock spoke of unlawfulness or ultra vires conduct, Lord Wilberforce of
abuse 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 affairs
of taxpayers is a mere matter of desirable policy or moral obligation. . .I
am persuaded that the modern case law recognises a legal duty owed by
the 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 for
the majority of the House of Lords that unfairness must amount to an abuse of
power.137 This position was quite deferential to the Revenue and interpreted
as a doctrine similar to that of legitimate expectations. It had until recently
only been applied in cases where an unambiguous representation and failure
to comply had been made by the Revenue.138 However, the Court of Appeal
took the doctrine further in the case of R. v Commissioners of Inland Revenue Ex
p. Unilever Plc.139 At stake was a 17 million tax liability. The Revenue had
allowed Unilever to file for a form of tax relief outside the statutorily prescribed
period for about 20 years. Abruptly in 1988, it enforced the time period against
Unilever and thereby denied it 17 million pounds in tax relief. At that
132
[1986] 2 All E.R. 164 at 175.

[1986] 2 All E.R. 164 at 175.
134 Saunders, Taxation: Judicial Review and other Remedies, Ch.9, esp. pp.142143.
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.
133
point in time, the Preston doctrine and subsequent jurisprudence required

that representations concerning tax clearance be unambiguous. The Court of
Appeal broke with this approach, acknowledging that it was taking a more
flexible approach to what constitutes vitiating unfairness140 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 not
necessarily exhaustive of the grounds upon which a successful substantive
unfairness challenge may be based.142 The Court quashed the decision.
The issue in this case was whether the Revenue should be permitted to act
in such a way, regardless of the reasons offered, or whether to do so would
be unfair. In deciding that the Revenue could not, the court was imposing
a substantive control on Revenues conduct in a matter that, involving
17 million and serving as a precedent for the Revenue and in public law
generally,143 could have significant redistributive repercussions.
The Unilever case would have been regarded as groundbreaking had it
concerned welfare provision rather than tax collection. This is partly evident
in the disagreements between lower courts over the doctrine of substantive
legitimate expectations. Whereas the line of authority leading to Preston
andUnilever was largely uncontroversial, the same was not true of cases in the
welfare and prison context. When a prisoner in Ex p. Hargreaves sought to
rely the endorsement of substantive legitimate expectations found in Sedley J.s
judgment in Ex p. Hamble (Offshore) Fisheries Ltd,144 the Court of Appeal rather
castigated his judgment as heresy and wrong in principle.145 Despite the
fact that Preston andUnilever were both cited to the Court in argument, neither
was even mentioned in the judgment.146 The schism became so obvious that
Lord 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 the
Inland Revenue or to taxpayers. Yet this is an area of law which has
been a site of recent controversy, because while Preston has been followed
in tax cases, using the vocabulary of abuse of power, in other fields of
public law analogous challenges, couched in the language of legitimate
expectation, have not all been approached the same way.147
This development thus appears wholly consistent with the already noted
divergence in approaches to statutory interpretation and review of tribunal
findings. While deference and justiciability are the watchwords in the social
140
[1996] S.T.C. 681 at 696 (Simon Brown L.J.).

[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.
141
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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 polycentric
issues in tax matters, in interpretation and judicial review, and tend to be more
assertive than Fullers doctrine might counsel. It is instructive to examine more
closely what role courts are expected to play in tax cases, and how they have
managed such a role amid the prevalence of polycentric problems.
The role of the courts in tax cases
The origins of judicial approaches in tax cases stretch back to attitudes
prevailing in 1799.148 At the time, Blackstones Commentaries affirmed the
sanctity 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 of
the whole community.149 Tax collectors had an unenviable calling. In the
Hamlyn Lectures of 1981, Henry Monroe discussed Blackstones castigation of
the procedures involved in assessing tax liability at the time, thereby setting
the pattern for all future generations of lawyers.150 Blackstone lectured at
Oxford about the arbitrary proceedings of excise law which seemed hardly
compatible with the temper of a free nation.151 Adam Smith had published
The Wealth of Nations in 1776, and in it argued for minimal taxation. He
wrote in particular of the odious examination of tax-gatherers which could
expose tax payers to much unnecessary trouble, vexation and oppression.152
Following on such sentiments, much of the history of taxation law is a narrative
of how the courts sought to restrain the actions of the Revenue.153 In 1955
Professor Wheatcroft reaffirmed that Parliament can expect no discretion or
elasticity 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-judicial
development of the General and Special Commissioners was to give the
taxpayer some avenue to complain about unfair assessments. It was felt that
a quasi-judicial and eventually independent second-look was necessary to
catch such errors.
Secondly, the principal role for courts would seem to be the protection
against the abuse of power. In the cases examined above there is very little
if any discussion of the Revenues expertise in taxation matters, and how
well placed it is to foresee the consequences of one interpretation over
148
Monroe, Intolerable Inquisition? Reflections on the Law of Tax, p.4.

Monroe, Intolerable Inquisition? Reflections on the Law of Tax, p.3 (quoting Blackstones 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 Smiths 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.
149
another. There rather seems to be a simple trade-off of expertise and foresight

of consequences on the one hand for the competing value of controlling the
administrative abuse of power and ensuring a modicum of fairness on the other.
The idea of the Revenue interpreting its statutory obligations, or exercising its
discretion, with minimal judicial oversight appears odious to the rule of law.
Indeed, Wade and Forsyth cite the Cure & Deeley Ltd case as authority for the
general rule that there may be no truly unfettered discretion in public law.155
This fits well with the longstanding policies in administrative law of rejecting
claims to unfettered discretionary power and resisting the ouster of judicial
review.156 Yet this is a far cry from Lord Brightmans finding in Ex p. Puhlhofer
that where the meaning of accommodation in homelessness legislation is
concerned, [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 the
job itself. This principle is reflected in the agonising dialogue between courts
and Parliament in the effort to stem tax avoidance. As Lord Scarman held
in Furniss v Dawson, [d]ifficult though the task may be for judges, it is one
which is beyond the power of the blunt instrument of legislation.158 Jon Tiley
recommends that courts can adapt to this role by simply developing new
methods of interpretation for new situations . . . on a flexible and pragmatic
case-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 fundamental
values, and in particular, what Blackstone called the absolute right to
property. The courts were constantly suspicious of government overreaching
in taxation, and viewed themselves as the guardians of liberty and property. This
emboldened them, doubtless excessively at first,161 to restrain the Revenue.
This may indicate that in cases where fundamental values are at issue, there
may be a societal expectation that courts will engage in stricter scrutiny of
government conduct and expect more formal expositions of reasoning. Such
a proposition derives support from the approach taken to judicial review
of matters implicating human rights generally, and including such review
under the common law principles.162 The same insight also likely explains
the high degree of judicial control over the criminal prosecution and refugee
application process, notwithstanding the substantial institutional competence
155
H.W.R. Wade and C. Forsyth, Administrative Law, 9th edn (Oxford: OUP, 2004), pp.354356.
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.562568.
156
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deficits in those areas as well. In all such cases, courts are often willing to
take a harder look at the facts, possibly introduce a strained construction, or
apply an open-textured concept such as fairness or reasonableness in a
more searching or demanding way. This suggests further that an honestly held
view that social rights are human rights would make a real difference in legal
practice.
Conclusion and implications
While Fuller set out to show that polycentric problems demarcated the limits
of 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 an
interesting insight into the judicial treatment of polycentric subject matter. It
showed both how and why courts adjudicate polycentric issues, and also how
the moral standards of society can influence what institutional role we feel
courts ought to perform.
This analysis leads to either of two conclusions. The first would be that the
concept should fade to obsolescence in favour of more sophisticated analyses
of judicial competence. This has been the general approach in America.163
A second approach would be to refine the doctrine to render it more
consistent with the role of courts in contemporary society. In my view, such a
refinement would need to meet three objectives: to clarify that polycentricity
is a property of issues and not areas of law, thus pre-empting the tendency
towards inconsistency between areas of law; to explain when it is that a legal
issue is polycentric, and explain away what appear to be obvious counterexamples (such as the enforcement of a clear statute); and to explain why courts
adjudicate certain polycentric issues, whether this is justified, and if so how to
minimise the negative impact of such a process. This last refinement would
need to explain what countervailing factors attenuate or offset the concerns
raised by the adjudication of polycentric issues. The proper articulation and
defence of such a reformulation goes beyond what could be offered in the
present article.164
While these two options remain open, it should be clear that another is
firmly closed. The idea of polycentricity cannot presently be relied upon
without serious contradiction to justify judicial restraint in public law. Judges
and scholars will need either to abandon the doctrine, recast it in a more
defensible form, or radically change the role of adjudication in contemporary
legal practice.
163
164
See generally text to fnn.3038 above.

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 in

Special Educational Needs Law: An
Anglo-Irish Perspective
Conor OMahony
Lecturer in Law, University College Cork
Comparative law; Constitutional rights; Human rights; Ireland; Local

education authorities powers and duties; Right to education; Special
educational needs
In the United Kingdom, with its constitutional tradition of parliamentary
sovereignty, the question of how rights are best protected has long been a
topic of heated discussion. In recent years, the incorporation into domestic
law of the European Convention on Human Rights (ECHR) through the
Human Rights Act 1998 has attempted to address this issue by bringing
rights much closer to centre-stage in UK law and policy making and creating
a constitutional expectation that Convention rights will be respected by all
branches of government,1 as well as providing mechanisms through which
this expectation is intended to become a reality. However, given the relative
youth of the Act, there is as yet no definitive view as to how effective it has
been. In contrast, the presence in Ireland since 1937 of a written Constitution
containing an extensive justiciable Bill of Rights has created a more settled
notion in that jurisdiction of how rights should be protected. However, recent
difficulties arising from the enforcement of one of those justiciable rightsthe
right to educationhave led to some debate amongst judicial and academic
members of the legal community regarding the exact role to be played by
a written constitution in the protection of rights, and of the position to be
occupied within such a document by a resource-dependent right such as the
right to education.
The purpose of this article2 is to consider the role of constitutional provisions and of legislation in the protection of the right to education, focusing
on the context in which that right is most frequently breachedchildren with
1
J. Jowell, Judicial deference: servility, civility or institutional capacity? [2003] P.L. 592 at p.597.
This paper has its origins in a paper presented by the author at the 4th World Congress on
Family Law and Childrens Rights in Cape Town, South Africa, March 2023, 2005. The author is
grateful for the comments offered by Katherine Williams and Ann Sherlock of the University of Wales,
Aberystwyth.
2
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special educational needs. In considering this topic, reference will be made

to the contrasting experience of the United Kingdom and Ireland, whereby
in the United Kingdom, there is no positive entrenched constitutional right
to educationcertainly not in the sense of an entitlement3 while in Ireland
there is a well established and highly developed justiciable constitutional right
to education, which includes a right to special educational provision. The
situation in the two jurisdictions regarding legislation is also significantly different, as England and Wales has had a detailed legislative framework for special
educational needs for over two decades, while Ireland only enacted detailed
legislation in this field in mid-2004. This paper will assess the impact of the
presence or absence of a constitutional right to education in each jurisdiction,
and consider the role that is played by legislation and its relationship with
the constitutional right. Through this, it is hoped that conclusions can be
drawn as to the relative significance of a constitutional right and of a legislative
framework in making adequate legal provision for the protection of the right
to 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 is
concerned specifically with a justiciable provision in an entrenched constitution,
such as Art.42 of the Irish Constitution.4 There is a variety of reasons which
can be put forward which militate in favour of placing the right to education
on such a constitutional footing, both on a theoretical and practical level. The
first of these is the position of the right to education as arguably one of the most
fundamental of all rights. This stems from a number of aspects of the right, but
above all from the position of education as a prerequisite to the realisation of
many other rights. The Committee on Economic, Social and Cultural Rights
has referred to education as both a human right in itself and an indispensable
means of realizing other human rights.5 The fact that the right to education
is a prerequisite to the full realisation of the right to work in a profession of
ones 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.1
to the ECHR, as incorporated into domestic law by the Human Rights Act 1998; the limited scope
of this provision when compared with the right to education under the Irish Constitution is discussed
below.
4 The Irish Constitution of 1937 is an entrenched document and can only be amended by legislation
passed in parliament and ratified in a majority vote in a referendum: see Arts 46 and 47. Article 42
confers a right to free primary education on children, and case law has defined this education such
that it should allow children to make the best possible use of their capacities, however limited those
capacities may be. This basic right is bolstered by a number of related rights and provisions, and
extensive provision is also made for parental rights in education. Although other economic and social
rights such as those relating to housing and healthcare are dealt with in the non-justiciable Directive
Principles of Social Policy in Art.45, education is given a separate, justiciable provision of its own. See
generally C. OMahony, Educational Rights in Irish Law (Dublin: Thomson Round Hall, 2006).
5 Committee on Economic, Social and Cultural Rights, The Right to Education (Art.13), General
Comment No.13, E/C 12/1999/10, December 8, 1999, para.1.
obvious way. These include the right to vote, which is fatally undermined in
the absence of an adequate education. The uneducated will have little chance
of exercising a fully informed vote; this has been recognised by US Supreme
Court in the case of Plyler v Doe when the Court stated that . . . some
degree of education is necessary to prepare citizens to participate effectively
and intelligently in our open political system if we are to preserve freedom
and independence.6 Similar arguments can be constructed in relation to the
right to the enjoyment of the highest attainable standard of health, for which
education in nutrition, hygiene, environmental sanitation, accident prevention,
family planning and the dangers of communicable diseases and infections is
essential.7
The fundamental nature of the right to education stems also from its inherent
connection to human dignity. The central role that the ideal of human
dignity plays in the human rights movement is illustrated by its invocation
in the Preamble to the Universal Declaration of Human Rights (UDHR)8 ;
interestingly, this step was taken 11 years previously in the Preamble to the
Irish Constitution,9 and it has been argued that human dignity is, along with
freedom, the most fundamental of all values under the Irish Constitution.10
There can be no doubt that education has a fundamental connection to
human dignity; it brings about basic life skills such as communication and
self-reliance, in the absence of which dignity is hugely undermined. Article
13(1) of the International Covenant on Economic, Cultural and Social Rights
(ICESCR) recognises this connection by stating that education should be
directed to the full development of the human personality and the sense of its
dignity.
The importance of education in this context is further amplified in the field of
special educational needs, where even the most basic elements of human dignity
are sometimes only attainable pursuant to intensive and ongoing education.
Mary Warnock has described the difference that education can make to
a severely disabled child as the difference between self-determination, or
freedom, albeit extremely limited, and total dependency and indifference to
the real world.11 Thus it is clear that the full realisation of human dignity
is inherently connected to the provision of adequate education for all. The
fact that education is essential to the pursuit of one of the central values of
human rights law as a whole clearly shows that education is one of the more
fundamental rights.
6
457 U.S. 202 at 221 (1982).

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. ODowd, 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.163181.
11 H.M. Warnock, Nature & Mortality: Recollections of a philosopher in public life (London: Continuum,
2003), p.45.
7
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The status of the right to education in international human rights law

reflects the fundamental nature of the right that has been explained above.
The right is included in a plethora of major human rights instruments
and is made non-derogable in the International Covenant on Civil and
Political Rights (ICCPR) and ICESCR. Furthermore, Hodgson argues
that it can be asserted with confidence that at least two aspects of the
rightthe right to free primary education and the right to equality of
educational opportunityare so universally recognised and established that
they have satisfied the stringent criteria necessary to acquire the status of
customary international law.12 If this assertion is correct, then it reflects
a globally held belief that the right to education is to be protected as
a matter of priority. If it is accepted that education is one of the most
fundamental of all rights, this would indicate that it should be the subject
of the highest form of protection that the law can offeran entrenched
and justiciable constitutional right. Moreover, there are also other aspects
of the nature of the right to education which lend themselves to such a
proposition.
As well as being a most fundamental right, education has a particularly
complex nature which makes it more difficult to protect than other human
rights. This difficulty is most unwelcome when viewed in light of the
fundamental nature of the right, and it will be argued here that it also
indicates that the right to education should be constitutionalised. There are
several aspects of the right to education which contribute to this complexity.
First, unlike other rights which involve a right of the individual and a
corresponding duty of the State, education involves a third protagonist: the
parents of the child in question. Parents are often involved in the exercise of
childrens rights; however, in the case of education, they are actually conferred
with independent rights of their own, which they are not merely exercising
on behalf of the child. This has greatly complicated the issue for the courts, as
the competing needs of three parties must be balanced in any given case. Even
this is a somewhat simplistic view when one considers the pressures exerted
by various interest groups, and in this regard the difficulties faced by a court
in adjudicating on an education dispute have been neatly summarised by Niall
Osborough:
Education problems supply one of the litigation battlefields of the
modern Republic. All the protagoniststhe State, the churches, the
teachers and their unions, the local community, the parents, the children
toohave individual interests they wish to see upheld. The difficulty
which so frequently precipitates the lawsuit is that in seeking to uphold
the interests of one set of protagonists, it is commonly impossible to
do otherwise than to interfere with, and sometimes even substantially
downgrade, the interests of one, if not more, of the other sets.13
12
D. Hodgson, The Human Right to Education (Aldershot: Dartmouth, 1998), pp.6364.

N. Osborough, Review of Farrys 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
13
A second unique aspect of the right to education is the fact that unlike other
rights, its exercise is compulsory.14 This has the result of creating rights and
duties for all parties15 unlike other rights, which create a right for one party
and a corresponding duty for another. Of course, the fact that there are rights
and 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 is
extremely difficult to classify into one of the so-called generations of rights.
While many rights are labelled as being civil and political rights, economic
and social rights or group rights, and some rights fall within two of these
generations, Manfred Nowak has remarked that education is probably the only
right which reveals aspects falling under all three generations.16 Education is
clearly a classic economic and social right, in the sense that it is a positive
entitlement to receive a service from the state. Its civil and political aspect
includes parental rights with respect to religious, philosophical and cultural
education, as well as its connection, discussed above, to the ability to exercise
civil and political liberties such as the right to vote. Finally, in the context of
education as a group right, Natan Lerner has cogently observed:
As far as groups are concerned, the very preservation of the existence of
the group may be related to the right to education . . . it is clear that a
group will see its future threatened if it is deprived of the right to ensure
its members an education in accordance with its traditions or beliefs, or
in its own language.17
This confusion between civil and political rights and economic and social rights
in particular creates a number of practical difficulties for the legal protection
of the right to education. The economic and social aspect of the right leads to
much 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: A
European Perspective (Dublin: Round Hall, 1994), pp.339 et seq. and OMahony, Educational Rights in
Irish Law, pp.91103.
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 the
ECHR in Family H. v UK (1984) D.R. 37 at 105. In England and Wales, compulsory education is
provided for by ss.78 of the Education Act 1996. In Ireland, compulsory education is provided for by
Art.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 the
parents rather than on the child, it may be argued that the child has a duty to be educated, and that legal
systems simply impose this duty vicariously on the parents of the child as it is legally expedient to do this
as 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 this
argument is accepted, the point being made is still validthe existence of rights and duties for both
parents and the State in respect of education certainly gives rise to added complications for the legal
provision 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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Public Law
Rights, due to the resource implications of such a step.18 It is for this reason
that the right was originally omitted from the ECHR, and when subsequently
included, it was formulated in negative terms which do not require the State
to provide any education at all, stating that [n]o person shall be denied the
right to education.19
The limited nature of the right to education under Art.2 of Protocol No.1
to the ECHR would seem to stem from this confusion in its classification;
its eventual inclusion in what is largely a civil and political rights instrument
was very much in a civil and political formati.e. a right not to be denied
somethingand this overlooked the economic and social aspect of the right,
undermining its scope and effectiveness. In the Irish context, the right overcame
the initial hurdle of inclusion in the Constitution; however, its complex nature
has led to its occupying an anomalous position within the fundamental rights
scheme of the Irish Constitution,20 which has in turn had negative ramifications
for the remedies available for a breach of the right, thus undermining the true
extent of its justiciability.21 Thus it can be seen how confusion surrounding the
classification of the right to education as civil and political or economic and
social can, indirectly, have a detrimental impact on the practical enforcement
of the right.
In summary, therefore, education is a right which falls under all three
generations of rights; it is tripartite and its exercise is compulsory. It has been
shown above how the complexity of these aspects of the right to education
creates practical difficulties for the legal protection of the right. The most
fundamental nature of the right, which was set out above, dictates that it
is imperative that these difficulties be overcome, and that it is essential that
the right to education be given the highest form of protection that the law
can offer. Furthermore, any entrenched constitutional right must be well
formulated; analysis of the provisions of the Irish Constitution shows how
a badly formulated constitution can, when entrenched, lead to intractable
18 Some commentators would dispute whether economic and social rights should ever be legally
protected, or even whether they can properly be described as rights; see, e.g. M. Cranston, Human
Rights, Real and Supposed in D. Raphael, ed., Political Theory and the Rights of Man (Bloomington:
Indiana University Press, 1967), pp.4353. The contrary argument has been well set out by G.J.H. Van
Hoof, The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional
Views in P. Alston and K. Tomasevski, eds, The Right to Food (Dordrecht: Martinus Nijhoff, 1984),
pp.97110.
19
The limited nature of the right to education under Art.2 of Protocol No.1 to the ECHR can be
seen in cases such as the Belgian Linguistic Case (197980) 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 Rights
Act 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 social
rights to be given a justiciable provision in the fundamental rights scheme of the Constitution; other
economic and social issues such as housing are relegated to the non-justiciable Directive Principles
of Social Policy of Art.45 which itself expressly provides that the principles set down therein shall
be the care of the Oireachtas [Irish Parliament] exclusively, and shall not be cognisable by any Court
under any of the provisions of this Constitution.
21 See TD v Minister for Education [2001] 4 I.R. 259, as discussed in C. OMahony, Education,
Remedies and the Separation of Powers (2002) 24 D.U.L.J. 57.
difficulties,22 and indeed that even reasonably well formulated provisions can
be interpreted in an undesirable way.23
While these latter points could be taken as indicating that it is better
not to constitutionalise the right to education, the difficulties of drafting are
not insurmountable, and while the danger does exist that provisions will
be badly interpreted, the same can be said of all legal sources. Ultimately,
the benefits of the protection provided by an entrenched and justiciable
constitutional right to educationparticularly in respect of resources (as will
now be discussed)probably outweigh the potential difficulties which may
arise and which could, in any event, be ironed out through a combination of
amendment and alternative interpretation.
Turning away from these theoretical reasons for constitutionalising the right
to education to more practical matters, perhaps the most compelling reason
that can be offered for placing the right to education on a constitutional footing
relates to the nature of the legal duty which such a provision places on the State
to provide resources. If a constitutional right to education is justiciable and is
drafted in a manner free from resource constraints, as is the case under the Irish
Constitution,24 this would shield educational funding from the political and
economic demands of any given moment.
The vindication of the right to education is, of course, expensive, particularly
in the context of special educational needs. It will always be an extremely
tempting target for funding cutbacks in times of economic hardship or when
political priorities lie elsewhere. This is a situation which should be prevented
at all costs. In purely economic terms, it should be noted that education
contributes enormously to the economic development of society; any attempt
to save money by cutting funding to education is simply a false economy.25
An even greater danger applies to special educational provision as the most
expensive type of education per head, but also the type which affects the least
number of people; its expensive nature and lack of electoral impact dictate
that it will always be a prime target for spending cutbacks. In human terms,
given the importance of education to the dignity of individuals with special
educational 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 of
Arts 41 and 42, on which see OMahony, Educational Rights in Irish Law, pp.4456.
23 See, e.g. the discussion of the age-limitations on entitlements in F. Ryan, Disability and the
Right to Education: Defining the Constitutional Child (2002) 24 D.U.L.J. 96; the discussion of the
balance between the interests of children and parents in OMahony, Educational Rights in Irish Law,
pp.91103; and the discussion of remedies and the separation of powers in OMahony, 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 States
duty to vindicate constitutional rightssee, e.g. Costello J. in OReilly 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 the
Constitution: Convergence of Paradigm and Praxis [199092] XXV-XXVII Irish Jurist 69 at 8485:
. . . a modern state, which cannot escape the consequences of modern techniques and modern
ambition, is exposing its population to poverty and exposing itself to disintegration unless it maintains a
certain level of universal education . . . The State cannot allow its citizens to remain ignorant, because
for very good reasons it cannot afford to.
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be pointed out that there is research which suggests that intensive education
even for severely disabled children may have economic benefits in the long
term.26
Under a simple legislative framework, it is all too easy for a government to
reduce the level of educational provision which is made available. Education
legislation itself often contains an in-built resource qualification; however,
even if it does not, express or (possibly) even implied repeal of the statute by a
simple parliamentary majority will suffice to make any reductions in provision
which the government seeks. The presence of a justiciable constitutional right
to education which is free from resource constraints provides protection against
this possibility, as it cannot be eroded as easily as legislation, and it also provides
a standard against which legislation can be judged. Furthermore, and most
significantly, a lack of resources will not justify a failure to vindicate the right.
This advantage was neatly summarised in relation to the Irish Constitution by
Barr J. in the High Court in Sinnott v Minister for Education:
A citizens constitutional right must be responded to by the State in full.
A partial response has no justification in law, even in difficult financial
circumstances which may entail the raising of new tax revenue to meet
such claimshappily a situation which has not pertained for several
years.27
In practical terms, few more compelling arguments could be presented in
favour of an entrenched and justiciable right to education.
To summarise, therefore, the right to education is a most fundamental human
right; however, its vindication is made extremely difficult by its complex nature.
The combination of these factors indicate that it is desirable that the right be
given the highest form of protection that the law can offer, which is an
entrenched and justiciable constitutional right to education. Furthermore, such
a provision, if formulated in a manner which is free from resource constraints,
can ensure that the necessary resources are always available to vindicate the
right to education for all children, and prevent the political and economic
demands of the day interfering with education funding. These are all important
reasons in favour of the adoption of a constitutional right to education,
and in considering special educational needs law in the Irish context, these
arguments can easily be made in favour of retaining the constitutional right
to education in the Irish Constitution. However, in England and Wales, the
matter is somewhat more complicated, given that that jurisdiction falls under
the 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 adequate
educational provision for children with special educational needs. They cite research from the Centre
for 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 the
public purse of a child with autism is about 3 million, but that even moderate improvements in
educational 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 presented
against 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 to
education, of the sort currently available in Ireland, could only be fully achieved
through a constitutional revolution involving the adoption of an entrenched
bill of rights and the abolition of parliamentary sovereignty. While there has
recently been some discussion of the possibility of drafting a new bill of rights
for the United Kingdom,28 a complete constitutional revolution of this sort
would seem to be unlikely to occur in the near future, particularly in light
of the comparatively recent enactment of the Human Rights Act 1998. Prior
to the enactment of the 1998 Act, a lengthy debate occurred in the United
Kingdom as to whether, and in what form, a bill of rights should be adopted.
This recently revived debate has spawned an enormous volume of academic
literature over the years and a full examination of this material would be far
outside the scope of the present discussion. However, it is useful to revisit the
major points of contention in this debate in order to examine the arguments
against taking such a step and consider whether they indicate that perhaps
Ireland might be better off without the entrenched and justiciable right to
education which is currently in place.
The value which the doctrine of parliamentary sovereignty seeks to protect
is, broadly speaking, democracy.29 The rationale underlying the doctrine
rests on the premise that Parliament, as the democratically elected organ of
state, represents the will of the people and exercises power on their behalf.30
Furthermore, Parliament should not be subject to any limitations by unelected
bodies such as the judiciary, since this would conflict with democracy and
undermine it. This rationale was set out by Lord Simon of Glaisdale in British
Railways Board v Pickin, where his Lordship stated:
28 See JUSTICE, A Bill of Rights for Britain? (JUSTICE, London, 2007) and F. Klug, A Bill of
Rights: Do We Need One or Do We Already Have One? [2007] P.L. 701. The Joint Committee on
Human Rights is currently inquiring into whether a Bill of Rights is needed for Britain and issued a
call 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 representative
democracy.
30 Historically, parliamentary sovereignty developed as a result of the shift of power from a hereditary
monarch 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 parliamentary
sovereignty came about through a gradual transfer of power from the Crown to a body which has
come more and more to represent the nation. While it may have originally have been a mechanism
for subjugating the Royals to the will of Parliament, the ultimate rationale underlying the doctrine
is surely that of protecting democracy. Dicey would seem to suggest as much (Dicey, Introduction to
the Study of the Law of the Constitution, (1960)) at pp.7274 where he sets out the distinction between
the legal sovereignty of Parliament and the political sovereignty of the electorate, stating that the
arrangements of the constitution are now such as to ensure that the will of the electors shall by regular
and 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 by

general political decisions have some control over the decision-making
is parliamentary democracy. Its peculiar feature is the sovereignty of
Parliament. This involves that, contrary to what was sometimes asserted
before the 18th century, and in contradistinction to some other democratic
systems, the courts in this country have no power to declare enacted law
to be invalid.31
Under this line of argument, therefore, judicial review of legislation pursuant
to a bill of rights is undemocratic, as is the entrenched bill of rights which
establishes the mechanisms for it. Does this imply that the presence of a
justiciable constitutional right to education in an entrenched bill of rights,
which includes a mechanism for judicial review of legislation, serves to
undermine democracy in Ireland?
It is submitted that there are a number of points that can be made which go
towards proving that a constitutionalised bill of rights, and more particularly a
constitutionalised right to education, is not undemocratic in itself, and indeed
arguably provides a greater level of protection for democracy than the doctrine
of parliamentary sovereignty. First of all, the argument that it is undemocratic
for a bill of rights to allow the courts to overrule the will of Parliament, which
is taken as representing the will of the people, is misconceived. In the Irish
context, one point immediately presents itself to undermine this argument:
the Constitution which allows the courts to do so was, after all, voted upon
by the people in the 1937 plebiscite, and in the words of the Preamble they
adopted, enacted and gave it to themselves. This direct vote of the people
can surely be considered to be more representative of their views than any
vote 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 the
Constitution must be taken by the courts as accurately representing the will of
the peopleeven more so than the view of Parliament. A direct vote of the
people is, in spite of its own imperfections, perhaps one of the purest of all
forms of democracy.
A second argument can be made to rebut the contention that a bill of rights
is undemocratic. The meaning of the term democracy is a vast issue in itself,
which could never be fully considered here; however, it is surely reasonably
clear that the ordinary meaning of the word, in its everyday usage in Western
society, implies far more than a mere headcount. This is an issue which has
been taken up by many eminent commentators, foremost among them Ronald
Dworkin:
When the eminent French historian Francois Furet came recently to
Britain to lecture on the occasion of the bicentennial of the French
Revolution, he said that the signal triumph of democracy in our time is
the growing acceptance and enforcement of a crucial idea: that democracy
is not the same thing as majority rule, and that in a real democracy liberty
and 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. Under
that vision of democracy, a bill of individual constitutional rights is
part of fundamental law, and judges, who are not elected and who are
therefore removed from the pressures of partisan politics, are responsible
for interpreting and enforcing that bill of rights as they are for all other
parts 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 democracys preservation that the power of a
democratically elected governmentor Parliamentbe not absolute . . .
the citizens democratic rights go hand in hand with other fundamental
rights; the latter, certainly, may in reality be more imaginably at risk, in
any given set of political circumstances, than the former. The point is that
both are or should be off limits for our elected representatives. They are
not matters upon which, in a delegated democracya psephocracythe
authority of the ballot-box is any authority at all.36
Indeed, this issue has been the subject of judicial comment in Ireland; in the
seminal case of Ryan v Att Gen, Kenny J. in the High Court observed that
Art.40 of the Irish Constitution is:
. . . in many ways the most important in the Constitution, for Art.5
declares that Ireland is a democratic State and what can be more important
in 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 an
important element of a democratic society, there are those who would argue
that the inclusion of a justiciable economic and social right such as the right
to education would be undemocratic. This relates to the fact that such a right
would tie the hands of elected officials as to the allocation of resources; it is
argued that this is a matter which is properly the domain of elected officials
since they, unlike the courts, are able to consider the competing demands of
all that may claim the resources, rather than the claims of individual litigants
in isolation.38 Again, however, it is possible to rebut the argument that the
right to education should be excluded from a bill of rights by recalling that,
as noted above, education supports democracy by enhancing the ability of
the electorate to make fully informed decisions. A comprehensive study on
the entire issue of the constitutionalisation of economic and social rights
has been conducted by Cecile Fabre; she argues that since the right to an
adequate 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.
H.L.A Hart, Law, Liberty, and Morality (London: OUP, 1963), pp.7781.
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.8590.
37 [1965] I.R. 294 at 310.
38 See, e.g. M. Walzer, Philosophy and Democracy (1981) 9 Political Theory 379 at pp.391392.
33
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a necessary condition for its functioning and survival, constitutionalising that

right does not therefore conflict with democracy.39 Her study concludes that
constitutionalising rights such as minimum income, housing and healthcare
may conflict with democracy, whereas constitutionalising the right to education
actually supports democracy.40 It is interesting to note that this is the exact
situation which pertains under the Irish Constitution.
In light of the above, it is submitted that the arguments which have been
made against the adoption of a bill of rights which includes a justiciable right to
education which are based, directly or indirectly, on the ground of a conflict
with democracy are ill-founded. The presence of an entrenched bill of rights
in the Irish Constitution, which includes a justiciable right to education and
powers of judicial review of legislation, does not conflict with democracy, and
indeed actually promotes democracy in ways which parliamentary sovereignty
never could. However, the discussion does not end there; apart from the
issue of democracy, there are other arguments which have been made against
supplanting parliamentary sovereignty with an entrenched bill of rights.
Lord Lloyd of Hampstead has argued that the legislature is a better forum
than the courts for the protection of rights and for dealing with grievances
arising from an infringement of rights. Among the reasons offered for this
argument is the notion that the legislature is more accessible than the courts to
the average man on the street.41 This line of argument is immediately open
to attack: in fact, quite the opposite is true in practice. While the majority
of people are able (eventually) to take a case to court with the support of
legal aid or voluntary groups, the political process is extremely inaccessible to
individuals and quite often to groups as well. In this context Gerry Whyte
has correctly observed that, if one moves from the realm of political theory
to the world of political reality, it is quite clear that some minorities cannot,
for whatever reason, secure adequate protection for their interests through our
political system.42 Lynch and Connolly have identified the reasons for this as
being, inter alia, insufficient numbers to cause any real impact in any given
electoral constituency and the geographical dispersal of members of vulnerable
minority groups such as the disabled.43
These remarks on the inequities of the political system can be usefully
contrasted 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 this
point up, stating:
39
C. Fabre, Social Rights under the Constitution (Oxford: Clarendon Press, 2000), pp.45 and 125126.
Fabre, Social Rights under the Constitution, pp.184185.
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 Irish
Legal Order in C. Costello (ed.), Fundamental Social Rights: Current European Legal Protection & the
Challenge 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 University
Press, 2001), p.106.
40
The vested interest of all government is to preserve the normal way of

doing things and to resist pressure for change . . . Legitimate pressure can
be generated through litigation under a bill of rights . . . Legislation or
executive action on human rights matters is frequently affected by the
political exigencies of the moment. Often it cannot be achieved at all,
or only partially. Litigation to enforce the bill of rights may be easier to
mobilise than either legislation or executive action.45
Zander continues by arguing that judges are better equipped and more ready
to find a remedy for grievances than politicians or civil servants; in this context
he 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 federal
legislatures.46 It is submitted that this is a far more realistic appraisal of the
situation than that offered above by Lord Lloyd, and indeed is one which
has been backed up by experience in recent years in Ireland. The enactment
of the Education for Persons with Special Educational Needs Act 2004 was
not brought about by political lobbying by parents or interest groups, but
as a direct result of persistent high-profile constitutional litigation on foot
of the continuing failure of the State to vindicate the right to education of
children with special educational needs.47 In the absence of the constitutional
right, such litigation could not have taken place, which would have left the
aggrieved children without any remedy whatsoever; furthermore, and more
significantly for the purposes of the present discussion, the impetus which
drove the enactment of the legislation would have been absent.
Finally, it is necessary to consider the possibility that the existence of a
justiciable constitutional right to education may have the effect of prioritising
the needs of the individual over the needs of the collective. This point has been
taken up by Ann Blair, who, basing her analysis on the limited right-based
nature of the special educational needs statementing process in England and
Wales,48 expresses concern that a rights-based approach to special educational
45
Zander, A Bill of Rights?, p.65.

Zander, A Bill of Rights?, p.66.
47 See, inter alia, ODonoghue 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 courts
have almost been overwhelmed with hundreds of actions dealing with a huge range of educational
issues.
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 and
the 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 education
authority is required, under s.324 of the Education Act 1996, to determine the special educational
provision that is to be made for the child, are made subject to a statement of special educational needs
which sets out the special educational provision that is to be made for that child. The local education
authority owes a personal duty to the child to arrange the special educational provision specified in the
statement, and consequently the child has a statutory right to that provision. On the other hand, a large
number of children with less severe special educational needs are not made subject to a statement of
46
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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 full
vindication of the rights of some children results in a lack of resources for the
vindication of the rights of those who do not go to the same lengths to secure
them.
Blairs argument is based upon an application of welfare law analytical models
to the legal framework for special educational needs in England and Wales.
A full discussion of these theories would be outside the scope of the current
discussion, which is intended only to address the issue of balancing individual
and collective interests in the context of the operation of a constitutional right
to education and the impact of such a provision on the legal provision for special
educational needs. Blair makes particular use of a classification which was set
out by Jerry Mashaw, under which there are three models of administrative
systems designed to allocate resources.50 The Bureaucratic Rationality model
involves matching a claimants circumstances to pre-determined categories of
need. The Professional Treatment model involves using professional judgment
to make individual assessments of need. Finally, the Moral Judgment model
involves adversarial claims against resources which are judged using judicial
concepts of fairness. Blair proceeds on the basis of Michael Adlers simplification
of Mashaws classification, which states that the first model relies on a system
of rules, the second on a system of discretion and the third on a system of
rights.51
In the context of the system in England and Wales, the rights-based model
can really only be seen in operation in relation to statemented children who,
if not provided with their entitlements under their statement, can take a
case to the Special Educational Needs and Disability Tribunal or the courts.
The all-important assessment procedure would seem to be predominantly an
illustration of the discretion-based Professional Treatment model, while the
provision made for unstatemented children in accordance with the Code of
Practice is perhaps a combination of the Professional Treatment model with
the rules-based Bureaucratic Rationality model. The Irish system,52 with its
overarching constitutional right and statutory assessment scheme, would seem
special educational needs, and have no enforceable statutory right to special educational provision. See
R. v Secretary of State for Education and Science Ex p. Lashford [1988] 1 F.L.R. 72 and R. v Harrow LBC
Ex p. M [1997] E.L.R. 62, as well as L. Lundy, Stating a case for the unstatementedchildren with
special 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 University
Press, 1983), pp.2334, discussed by Blair, Rights, duties and resources (2000) 12 E. & L. 177 at
pp.181184.
51
M. Adler, Decision making and appeals: social security in need of reform (1997) 68 Political
Quarterly 388 at 394396, 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 which
includes a right to special educational provision, to which has now been added a detailed statutory
framework for assessing educational needs and preparing enforceable education plans to meet those
needs (which are similar to statements in England and Wales). See OMahony, Educational Rights in
Irish Law, pp.156199.
by and large to be a combination of the rights-based Moral Judgment model

with the discretion-based Professional Treatment model. These models do
not, of course, fit the systems perfectly,53 but nevertheless are useful as broad
analytical tools.
Essentially, Blairs point is that a rights-based approach results in more
inequality than either the rules-based or discretion-based approach, as not
everyone is able to access the adversarial system in the same way or to the same
extent.54 Those who successfully engage in the adversarial system receive total
vindication of their rights, leaving fewer resources available to meet the needs
of those who do not take a case. The court or tribunal which determines the
case is not required to consider the needs of those who are not a party to the
case, even though the allocation of resources resulting from its decision may
ultimately impact on those needs by removing a potentially sizeable portion of
resources from a limited pot. Blair cites Jack Tweedies explanation of this point:
When rights are interpreted by decision-makers focused on individual
claims, as judges are expected to be, individual claims are given
near-absolute precedence over collective policy considerations, often
undermining the programmes pursuit of collective goals.55
Furthermore, the adversarial process itself is expensive and often wasteful of
resources which, rather than being spent fighting claims, could be released
to be spent on meeting needs instead. Additionally, the knowledge that this
course of action is available to the parents of statemented children means that
local education authorities will generally make the provision detailed in the
statement, often at great expense. In the process, they will divert resources
away from unstatemented children, thereby prioritising the needs of a small
number of children over those of the vast majority.
Having rejected exclusive reliance on the rights-based model, Blair
acknowledges the difficulties surrounding the alternative models, and in
particular the need to separate professional judgment from the holder of the
purse-strings, in order to avoid a situation where some need will be unmet
because it is not serious enough to attract scarce resources rather than because
it is not genuine.56 Consequently, she advocates the pursuit of collective
goals through a combination of a discretion-based system with a system of
independent review (which she distinguishes from appeals). Blair suggests that
this can be achieved in England and Wales through school-based initiatives
designed to move resources away from the statementing process, targeting
them instead at attempting to address needs before they become so acute as to
merit the preparation of a statement.57 However, Blair concedes that:
53
See Blair, Rights, duties and resources (2000) 12 E. & L. 177 at pp.183185.
Blair, Rights, duties and resources (2000) 12 E. & L. 177 at pp.186187.
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 point
is 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 further
Warnock, Nature & Mortality, pp.56 and 6364.
57 Blair, Rights, duties and resources (2000) 12 E. & L. 177 at pp.187189.
54
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[I]t will be important to build in safeguards to deal with the difficulty of

ensuring that weakening the hold of individual rights does not mean that
we are persuaded to accept levels of provision which are inadequate to
meet genuine need.58
This latter point is of some considerable importance when operating in a system
where resources are the dominant consideration in assessing special educational
needs. Blairs entire analysis proceeds on the basis of an acceptance that overall
resources will always be set at a fixed level which may often be insufficient to
meet overall demand. This is where the rights-based model which Blair rejects
is in fact critical to the balancing of individual and collective goals. Since the
crux of this issue is resources, the solution to the problem identified by Blair
can indeed be found in the rights-based model which is in place in Ireland.
A constitutional right to education for children with special educational needs
which rises above resource considerations, as is the case in Ireland, places a constitutional duty on the State to make available whatever resources are necessary
to 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 statutory
framework for special educational needs in Ireland has been formulated so as to
be rights-based and demand-led. Resources are provided in response to what
has been determined to be required by assessments and education plans, and
the purse-strings have been separated from those who exercise discretion.59
In theory, therefore, this legal framework should ensure the availability of the
resources necessary to fully meet the special educational needs of all children
who have accessed the system. This can be contrasted with the system in
England and Wales, which is largely discretion-based and supply-led, and
where (as Blair herself has identified) the current system involves decisions
regarding levels of provision being made within the confines of a limited pool of
resources. This results in many children, whether statemented, unstatemented
or indeed not having special educational needs at all, having to settle for
less than full provision as the necessary resources have simply not been made
available under the legal framework.
Blair concedes that regardless of which model is employed, the making
of adequate provision is ultimately dependent on the existence of adequate
budgets.60 These are far more likely to be brought about by a constitutional
right which is free from resource constraints. A constitutional imperative of
this nature requires the provision of sufficient resources to allow for full
provision to be made for the needs of every individual child. Thus it avoids the
difficulty of attempting, within the constraints imposed by operating from a
limited pot of resources, to balance this goal with addressing the requirements
of the collective. The Irish framework, although currently slightly flawed
58
Blair, Rights, duties and resources (2000) 12 E. & L. 177 at p.190.

See ss.10 and 13 of the Education for Persons with Special Educational Needs Act 2004, as
discussed in OMahony, Educational Rights in Irish Law, pp.184199.
60 Blair, Rights, duties and resources (2000) 12 E. & L. 177 at p.189.
59
in this respect,61 nevertheless points to a way in which a combination of

a constitutional right and a legislative framework can make legal provision
for adequate resources for all, without being subject to budget limitations.
This may sound unrealistically expensive, but as already discussed, it is money
well spent, both in human and economic terms; moreover, both the United
Kingdom and Ireland can afford it. The provision of the necessary resources
is ultimately a question of political will, but a constitutional right which is
entrenched, justiciable and free from resource constraints makes it far more
difficult for politicians to avoid making the resources available.
In summary, therefore, the main criticisms which could be made of an
entrenched bill of rights which includes a justiciable right to education are
based on notions of democracy, the suitability of the legislative branch of
government to the protection of rights and concerns relating to individual
rights undermining the collective good. However, the discussion above has
shown that these arguments do not suggest that the existence of a justiciable
right to education in the Irish Constitution is undesirableparticularly when
weighed against the earlier discussion of the value of a constitutional right to
education. Consequently, the fact that such a provision exists in Ireland is to
be applauded rather than criticised.
The discussion thus far in this paper has demonstrated that there are many
reasons why the right to education should be constitutionalised, and that the
arguments 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 complete
solution; as will now be discussed, practical experience in Ireland has shown that
a constitutional right alone is completely insufficient to ensure that adequate
provision 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 further
legislative provision, is sufficient to ensure the full vindication of the right,
it is possible to draw upon 60 years of practical experience of this exact
situation in Ireland and answer the question with an emphatic no. The
Irish experience provides a graphic and unequivocal illustration of the need for
more than a mere constitutional right; a highly detailed legislative framework
is required to guide its operation and to give teeth to the right. Constitutional
documents, by their very nature, should state matters at a level of generality
that 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 Special
Educational Needs Act 2004 has left some slight doubt as to whether the terms of the Act will prove
to be fully enforceable in the event of a court dispute; see OMahony, Educational Rights in Irish Law,
pp.256259.
62 The Report of the Constitution Review Group (Dublin: Stationery Office, 1996), states at p.355
that the Constitution should, where possible, endeavour to state propositions at a sufficient level of
generality to permit evolution and development.
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contrasting demands of the various levels and types of education, from preschool to higher level, and particularly the field of special educational needs,
require a highly detailed framework in which to operate. The Irish experience
of the past decade in particular has illustrated the difficulties which can arise
from relying solely on the constitutional provisions.
In the absence of a detailed legislative framework to guide the operation of
the constitutional right, education has remained very much in the executive
field, being regulated by a series of circulars and memoranda issued by the
Department of Education. This has led directly to two major difficulties in
practice which have had the effect of undermining the right to education of the
child. First, demarcation disputes have arisen between government departments
as to who is responsible for funding various aspects of educational provision
such as transport, psychological assessments and residential care. Given the
level of expense involved in these matters, the Department of Education has
been all too eager to try to pass the buck to the Department of Health
and the Department of Transport. In turn, these departments feel that they
are being asked to take on expenses rightly belonging to the Department of
Education. This is a particular danger in the resource intensive area of special
educational needs, where a variety of support services are required and the
amount of money necessary to vindicate rights is disproportionately larger than
the number of votes which will be lost as a result of a failure to make adequate
provision.
These disputes between departments tend to descend into protracted
wrangling, giving rise to lengthy delays in making adequate provision
for children; delays which may cause irreparable damage to a child with
special educational needs, since it is well established that early diagnosis and
intervention are of paramount importance in relation to learning difficulties
such as autism and dyslexia. Furthermore, if the law imposes age limits on
entitlements to educational provision (as it does in both England and Wales and
Ireland),63 delays in meeting a childs needs cause that child to lose irrevocably
part of his limited period of entitlement to free provision. Referring to one
series of such delays, Kelly J. in the Irish High Court characterised the situation
as a scandal and stated that: The addressing of the rights of the young people
that I have had to deal with appears to be bogged down in a bureaucratic
and administrative quagmire.64 The advantage of a legislative framework in
such a scenario is to stipulate clearlyin legally binding termsthe areas of
responsibility 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 Needs
Act 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 resolution
mechanism to deal with cases where the issue is unclear. Section 7 sets out the division of responsibility
between health boards and the National Council for Special Education. Section 7(5) provides that if a
dispute arises between a health board and the Council as to which of them can more effectively provide
particular 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, are
content to pass back and forth between themselves.
The other major difficulty which has arisen from the absence of a legislative
framework relates to the issue of remedies. This is a highly complex issue, and
no more than a brief explanation is possible in the present context.66 As noted
above, the absence of legislation in Ireland has caused education to remain in
the executive field as a matter of policy rather than of statutory obligation. Even
in 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 the
written Constitution, the result has been the decision of the Supreme Court
in TD v Minister for Education68 that it is impermissible to grant mandatory
injunctive relief compelling a Minister to provide the resources necessary to
discharge the States 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 remediesdamages
and declaratory reliefare generally inadequate, and that mandatory relief
is often essential to the vindication of the rights of the child. Crucially, it
was commented by one of the judges involved in the TD decision that the
difficulties which arose in relation to the separation of powers would not arise
if a legislative framework was in place,70 and this would seem to have been
confirmed in principle.71 While it is as yet unclear, due to a technical issue,
whether the legislative framework eventually enacted in Ireland actually solved
the problem,72 the fact remains that in principle, this is another benefit of
adding such a framework to the underlying constitutional right.
A further reason for adding a legislative framework to the constitutional right
relates to access to alternative and more specialised remedial procedures. It is
essential 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 by
either or both of the bodies within two months of arising. The Appeals Board is then to determine the
case within two months.
66 This matter has been fully discussed by OMahony, Education, Remedies and the Separation of
Powers (2002) 24 D.U.L.J. 57.
67 On the relative looseness of the separation of powers under the British Constitution, see the
following quote from R. Stevens, The Independence of the Judiciary: The View from the Lord Chancellors
Office (1993) quoted in Laws, Law and Democracy [1995] P.L. 72 at p.90: Nothing underlines the
atheoretical nature of the British Constitution more than the casualness with which is approaches the
separation of powers. In spite of this, the courts still tend to regard an interference with matters of
policy as being a breach of the separation of powers; see Council of Civil Service Unions v Minister of State
for the Civil Service [1985] A.C. 374.
68 [2001] 4 I.R. 259.
69 See OMahony, 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 711712 that no
difficulty would arise in respect of injunctive relief granted pursuant to a statutory duty. Hardiman
J.s judgment in Sinnott was basically a less developed version of the judgment which he gave shortly
afterwards in TD.
71 See Cronin v Minister for Education [2004] 3 I.R. 205
72 See OMahony, Educational Rights in Irish Law, pp.256259.
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accessible, since delays can cause irreparable damage to a childs educational

prospects and cause the child to lose irretrievably a period of entitlement
to free education. However, a plaintiff wishing to sue directly on foot of
the constitutional right in Ireland must do so in the superior courts; this is
inordinately expensive and time-consuming. An action for breach of statutory
duty, on the other hand, can be brought at a lower level; furthermore, a
legislative framework can establish a statutory remedial procedure such as the
Special Educational Needs and Disability Tribunal in England and Wales73
and the Special Education Appeals Board in Ireland.74 Both children with
special educational needs and their parents already suffer from cumulative
disadvantage which has been identified as causing them to lack the time,
resources or confidence to go to court as individuals.75 Consequently, it is
essential that remedies be made as accessible as possible to them. Specialist
tribunals have the distinct advantage of being more informal and user-friendly
than 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 a
court of law to make informed judgments on the needs of individual children.
The overall argument in favour of adding a legislative framework to an
underlying constitutional right is that it provides the necessary level of detail
to 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 minute
matters of detail, but to ensure the highest level of legal protection available.
Legislationboth primary and secondarywill deal with the finer aspects
of educational provision, setting out exactly what is to be provided, who is
to provide it, procedures for how provision should be made and remedies
for when it is not. The practical experience in Ireland would seem to have
conclusively demonstrated the need for legislation and the ineffectiveness of a
constitutional right alone. However, it could be asked: if it is legislation, rather
than 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? England
and Wales has operated a system for over 20 years that has relied solely on
legislation; the question that should now be considered is whether England
and Wales has lost out on anything by not having an entrenched and justiciable
constitutional right to education.
Is a legislative framework sufficient on its own?
It has been shown above that the sole reliance on a constitutional right
to education in Ireland resulted in a completely inadequate response to
73 The Special Educational Needs and Disability Tribunal was established in England and Wales by
s.177 of the Education Act 1993 and is currently governed by Pt IV of the Education Act 1996 (as
amended by the Special Educational Needs and Disability Act 2001) and the Special Educational Needs
Tribunal Regulations 2001 (SI 2001/600); see generally N. Harris, Special Educational Needs and Access
to 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 for
Persons 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 sustained
constitutional litigation eventually brought about a legislative framework that
it is hoped will address many of the previous failures. However, it should
also be noted that some of the more admirable aspects of the legislation
that was eventually enactedmost particularly its demand-led approach to
resourceswere influenced by the presence of a constitutional right in the first
place. It now falls to consider whether the system in England and Wales, which
is based solely on legislation, contains weaknesses which might be attributable
in 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 the
protection of human rights in general, and to the right to education in
particular, and to contrast this with the protection provided by the Irish
Constitution. For this purpose, it is necessary to consider the incorporation of
the ECHR into domestic law in the United Kingdom through the enactment
of the Human Rights Act 1998. The 1998 Act was undoubtedly a step in the
right direction for the protection of fundamental human rights. However, it is
submitted that it did not go far enough in order to bring about an adequate
protection of human rights in general; furthermore, in the specific context of
the right to education, the protection it offers is quite limited indeed.
Generally speaking, a fundamental difficulty with respect to the protection
of human rights in the United Kingdom is that the doctrine of parliamentary
sovereignty 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, save
in a minority situation, at the mercy of the executive, is no sure
guarantee of human rights . . . Without a bill of rights protected from
repeal, amendment, or suspension by the ordinary processes of a bare
Parliamentary majority controlled by the government of the day, human
rights will be at risk.76
While the 1998 Act may have introduced the language of human rights and the
case 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 repeal
the 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 other
statutes is its protection from implied repeal arising from its classification as
a constitutional statute.77 The fact that parliamentary sovereignty allows
76 Sir Leslie Scarman, English LawThe New Dimension (London: Stevens & Sons, 1974), p.69. Apart
from the dangers of parliamentary sovereignty, Scarman touches upon another issue here: the increasing
degree of control which the executive exercises over Parliament. Sir Thomas Bingham, The European
Convention on Human Rights: Time to Incorporate (1993) 109 L.Q.R. 390 at p.391 has referred to
this as the elective dictatorship of the majority [which] means that, by and large, the government of
the 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 constitutional
statute, i.e. a statute which conditions the legal relationship between citizen and state in some
general, 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 constitutional
settlement78 ; at the very least, it would seem to justify arguing in favour of the
adoption 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 taken
of political as well as legal entrenchment. Closer examination reveals that
academic opinion is divided as to the real benefit of entrenching a bill of
rights. It has been suggested by Sir Thomas Bingham that there is no need for
entrenchment of an Act incorporating the ECHR, since the political reality
is that such an Act is extremely unlikely to be repealed.80 Zander approaches
the same point from the other side, suggesting that the level of entrenchment
is perhaps irrelevant as the government will always, if necessary, find a way
around it.81 However, he also concedes Binghams point by stating that [a]
bill of rights clothed only in the special aura created by its title has a significant
measure of entrenchment through the mere fact of its existence.82
The level of entrenchment which a bill of rights should enjoy is another
question; this can range from an express derogation clause to a special majority
requirement to the necessity for a referendum or even a combination of any or
all of these.83 Certainly, Zanders point that a requirement for a special majority
will easily be met in an emergency is valid, while critics of entrenchment
may argue that a requirement for a referendum goes too far and is unduly
restrictive in such an event. However, this difficulty can easily be overcome
by the inclusion of an emergency powers provision in the bill of rights or
constitutional document; such a provision can be formulated sufficiently tightly
to achieve, as far as possible, a balance between the protection of rights and
the 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 is
undoubtedly 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 at
597, it may be impossible to entrench a statute to any degree whatsoever, since Parliament is entitled
simply to ignore any provision in a statute which purports to prevent the statute being amended or
repealed 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.174176 and 190. If this view is correct, then any argument for an
entrenched bill of rights becomes, by necessity, an argument for a new constitutional settlement.
80 Bingham, English LawThe New Dimension (1974) at p.396. Bingham states that the repeal of such
laws as those extending the vote to the entire adult population or supporting the independence of the
judiciary would be unthinkable in the absence of something approaching a revolution and that a bill of
rights 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.1315.
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 be
declared invalid pursuant to any provision of the Constitution. While the power extends to allow the
Oireachtas to declare a state of emergency and enact such laws pursuant to a war taking place other
than in the State (as happened in the Second World War), and to extend the period of an emergency
for a period after the cessation of hostilities, the power does not extend any further than this and
would seem to strike a reasonable balance. Modern concerns regarding global terrorism could also be
accommodated in a similar provision.
for bills of rights to set out circumstances under which it is justified for a
government to infringe any given right; the ECHR provides a good example
of how a highly detailed system can be set down for testing whether any given
interference is legitimate.85
Critics may argue that if Zander and Bingham are correct, and the level
of entrenchment enjoyed by a bill of rights is somewhat irrelevant, then
there is certainly no need to go so far as to require a referendum authorising
amendments to the Bill. However, as noted above, rights can easily be
eroded in a state where the bill of rights is not entrenched. Indeed, even
the presence of an entrenched bill of rights does not entirely prevent state
violations of rights. It is, however, the best form of protection available,
and provided that sufficient flexibility is catered for in order to allow the
government to respond to threats to the common good, it is desirable that
a bill of rights should be more deeply entrenched than a token requirement
for an express derogation clause or the slightly stricter concept of a special
majority. It is the rights of the people that are being restricted, and once a
bill of rights has clearly specified the circumstances under which a government
may restrict the rights which it guarantees, then no further interference
should be permitted without the consent of the people as expressed in a
referendum. This has the obvious advantage of a greater level of certainty and
a more concrete and unassailable level of protection for rights in everyday
circumstances.
Apart from its lack of entrenchment, the 1998 Act suffers from further failings.
The mechanisms which it employs for the incorporation of the Convention
have been carefully formulated so as not to impinge upon parliamentary
sovereignty in any way; consequently, the 1998 Act does not contain any
mechanism for judicial review of legislation.86 The rather limited provisions
which it does implement merely scratch the surface of what is required to deter
a resolute government from violating the rights of citizens through its acts or
omissions. When it is recalled that the Act currently represents the high-water
mark 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 argued
at p.5 that a provision such as this may be undesirable in that constitutional approval may legitimise
intrusive government practices and even give the impression that they are actually desirable, whereas
remaining 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 in
which these intrusions can be made leaves courts powerless ever to declare them invalid; defining them
allows 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 Rights
and the British Constitution in J. Jowell and D. Oliver, eds, The Changing Constitution, 5th edn
(Oxford: OUP, 2004), pp.6287. The procedure under the Human Rights Act whereby the courts can
declare legislation to be incompatible with the Convention, but it remains up to Parliament to remedy
the defect, is well discussed by F. Klug, A Bill of Rights: Do We Need One or Do We Already Have
One? [2007] P.L. 701. On the importance of judicial remedial powers to the practical implementation
of human rights which are enumerated in written constitutions see F. Beytagh, Individual Rights,
Judicial Review, and Written Constitutions in J. OReilly, ed., Human Rights and Constitutional Law
(Dublin: Round Hall Press, 1992), pp.147162.
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quite clear that the level of protection which is available to human rights in
general is somewhat less than desirable.
When the specific level of protection offered to the right to education is
considered, the Act fares even worse. This is not due to any flaw in the Act
itself, but to the extremely limited nature of the right to education under Art.2
of Protocol No.1 to the ECHR. It is well established that Art.2 does not
require the state to provide any education at all, confining itself to conferring
a mere right of access to existing educational establishments. The case law
relating to special educational needs has demonstrated how even this right is
highly limited by the level of discretion afforded to funding authorities as to
the allocation of resources.87 Since this weak provision, as implemented by
the somewhat limited Human Rights Act, is the closest thing in UK law to
a constitutional right to education, it is clear thatin the legal sense at any
ratethe level of protection afforded to the right to education is less than
could be hoped for. Furthermore, it compares most unfavourably to Art.42 of
the Irish Constitution, even notwithstanding its flaws.
Apart from the general approach to the protection of rights, a further
argument can be drawn from the overall impression that one gains when
contrasting the body of constitutional case law relating to education in Ireland
with its legislative equivalent in England and Wales. The general approach
to children in education law in England and Wales has been to avoid the
creation of individual rights.88 Instead, the Education Acts place local education
authorities under a series of statutory duties and afford to them a large degree of
statutory discretion as to how to discharge those duties. Undoubtedly, a large
amount of discretion is necessary for local education authorities to carry out
their function. However, in the absence of a right to education (properly
so-called) in English law, the effect of this is as follows: as courts are invariably
reluctant to interfere with a public authority in its exercise of a discretion
conferred by statute, cases begin from the standpointindeed, almost the
presumptionthat the courts should not interfere with the course of action
adopted by the local education authority. It is up to the plaintiff in the case to
persuade the court that there is a strong case for doing otherwise. This has the
effect of stacking the deck in favour of the local education authority in many
cases and creating a major hurdle which many genuinely aggrieved plaintiffs
will find it difficult to cross.89
The presence of an overarching constitutional right to education causes Irish
case law to have an entirely different emphasis. Instead of revolving around a
reluctance to interfere with the exercise of a statutory discretion, the case law
focuses on the fact that the child has a constitutional right which the State
has failed to vindicate.90 This is obviously a far preferable situation, and could
87
See OMahony, Educational Rights in Irish Law, pp.153156.

See, e.g. M. Freeman, Childrens 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 Fulton
Publishers, 1996), pp.2948.
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.
88
make a particular difference in the field of special educational needs in England

and Wales. The statutory procedures which are the subject of much litigation
are so detailed that they become an issue in themselves, with the fundamental
issue of a breach of a childs right to education becoming lost in the process.
A constitutional right to education ensures that the real issues are at the heart
of 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 of
the litigation in England and Wales.
A bigger issue, however, is the focus of the legislation itself; indeed, it is from
this that the focus of the litigation results. As mentioned above, the absence
of a rights-based approach to educational provision in England and Wales
leads to a situation where the availability of resources is determined out of an
overall budget figure, out of which individual allocations of resources are to be
allocated on a discretionary basis. Because the allocation of resources is supplyled and works from the top down, the overall budget is invariably inadequate,
which has the knock-on effect that individual allocations of resources will, in
certain cases at least, be similarly inadequate. This is exacerbated by the failure
to separate the holder of the purse-strings from the exercise of the discretion,
whereby LEAs are responsible for both the assessment of educational needs and
the allocation of resources to meet those needs. This inevitably leads to cases
where individual provision is determined by reference to what can be provided
within the budget rather than by reference to what is actually required to meet
the needs of the child.
In contrast, the Irish legislation provides for a system whereby special
educational needs are determined in assessments arranged by schools or the
National Council for Special Education,91 and a duty is placed on the Minster
for Education to allocate such moneys and other resources as are required
for the purposes of the preparation and implementation of education plans
prepared on foot of such assessments.92 This suggestsand this would appear
to be confirmed by discussion in the Dail (Irish Parliament)93 that the system
will be demand-led, rather than supply-led, in the sense that the resources
supplied to each school, and indeed overall, will be determined by the contents
of 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, it
may be argued that, in general, special educational needs and provision are not
exclusively, or even mostly, demand-led.94
This is a crucial difference between the jurisdictions in the context of the
funding arrangements for special educational needs, and it is highly significant
to note that the rights-based and demand-led approach to resources which
has 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.
See s.13 of the Education for Persons with Special Educational Needs Act 2004.
93 See 585 D
ail Debates 823, May 13, 2003.
94 N. Harris, Special educational needsthe role of the courts [2002] 14 C.F.L.Q. 137 at p.143.
92
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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 bottom
up, with assessments of what provision the child requires being made by a
body which is not involved in the allocation of resources, and the overall
resources being provided by reference to the education plans which have
been prepared pursuant to the assessments. Such is the expense involved in
such a system that it is difficult to imagine it having been designed in such a
way in the absence of a pre-existing entrenched and justiciable constitutional
right to education which is free from resource constraints. Thus the true
impact of the presence of a constitutional right to education in Ireland and
the absence of such a right in England and Wales could be distilled down
to the difference between a demand-led system which requires the consent
of the people to any radical changes, and a supply-led system which can be
altered quite easily by, if not entirely at the whim of, the government of
the day.
Conclusion
In considering the relative importance of a constitutional right to education and
a legislative framework to the making of adequate provision for children with
special educational needs, this paper has shown that there are many positive
features of a constitutional right to education that is entrenched, justiciable
and free from resource constraints. This is what is provided by the current
Irish Constitution. While there are a number of arguments which can be made
against the existence of such a provision, it has been argued that these are either
misconceived or ill-suited for application to the right to education. It has also
been shown that while constitutionalising the right to education in this manner
has many advantages, it is in no way sufficient to rely on a constitutional right
alone. The practical implementation of the right requires that it be backed
up by a detailed legislative framework, as shown by practical experience in
Ireland. This is not to say that the presence or absence of a constitutional right
has no practical impact; the legislation and case law in England and Wales
has shown that the absence of a constitutional right can result in eschewing a
rights-based approach in favour of a discretion-based and supply-led system,
where insufficient resources are allocated out of inadequate budgets and courts
lose sight of the rights of the child amid a blur of statutory procedures and
discretions.
The analysis would seem to suggest that in providing for special educational
needs, a legal system should ideally have an entrenched and justiciable
constitutional right to education which is free from resource constraints as
a foundation, and a legislative framework as a superstructure; indeed this is
what Ireland now has. While a number of individual flaws with various aspects
of 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, D
ail Select
Committee on Education and Science, January 7, 2004 regarding the legislation being designed to
provide a statutory base for the implementation of constitutional rights.
approach on a systemic level is the correct one. In light of the political realities
of the constitutional system in the United Kingdom, this is an unrealistic course
of action to be recommended in England and Wales. Nevertheless, much could
still be achieved by reforms which concentrated on the effect, rather than the
form, of the law.
To this end, the right to education of children with special educational
needs would be better protected in England and Wales if the legislation
was 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 the
consciousness of the electorate, and it could be argued that an increased
emphasis on the right to education in education legislation could bring
about a similarly significant measure of political entrenchment to that enjoyed
by the Human Rights Act 1998. More significantly, legislation which is
rights-based is more likely to operate so as to be demand-led, thereby
being far more likely to ensure that adequate resources are allocated to
meet individual needs. Ideally, in order to reinforce this, decisions regarding
assessments of educational needs and the allocation of resources should be
made by separate bodies who are independent of each other. In this way the
advantages enjoyed in Ireland due to the nature of the constitutional right to
education which exists there could be conferred to a certain extent in England
and Wales without the necessity of a new constitutional settlement in the
United Kingdom.
152
Public Law
Current Survey
(This survey covers the period AugustNovember 2007)
Administration of Justice
Legal Services Act 2007
Complaints; Legal services; Legal Services Board; Regulatory bodies
Part 2 (ss.211) of the Legal Services Act 2007 establishes the Legal Services
Board, whose responsibility is to promote the regulatory objectives set out in
Pt 1 (s.1). Part 3 (ss.1226) defines reserved legal activities and provides for
the regulation of those engaged in such activities. Part 4 (ss.2770) deals with
the regulation of approved regulators. Part 5 (ss.71111) deals with alternative
business structures. Part 6 (ss.112161) deals with legal complaints. Parts 7, 8
and 9 (ss.162214) 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 and
overruled an earlier decision of a deputy High Court judge. Both county court
judges had held that, as the Chancery division of the High Court and the
county court were courts of co-ordinate jurisdiction when hearing applications
under the relevant statutory procedure, they were not bound by the earlier
decision but as a matter of judicial comity should follow the earlier decision
unless satisfied that it was wrong. Held, that decisions of a higher court are
binding on judges sitting in a lower court; that the Chancery division of the
High Court does not cease to be a higher court than the county court when
it exercises the same first instance jurisdiction as has been conferred on the
county court; that there is no relevant difference between the decision of a
High 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.2531 and Sch.8 of the
Constitutional Reform Act 2005 (instituting the appointments process for
justices of the United Kingdom Supreme Court) on a voluntary basis from
now on for those appointed to the Appellate Committee of the House
of Lords (H.C.Deb., Vol.464, col.21WS, October 8, and (an amending
statement) Vol.465, col.11WS, October 24, 2007). A discussion paper on
judicial 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 the
convention that former salaried judges cannot return to practice as barristers or
solicitors should remain. He is not persuaded that lifting the prohibition would
increase 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 public
authorities includes The British Broadcasting Corporation, in respect of
information held for purposes other than those of journalism, art and literature.
S sought disclosure under the Act of an independent report commissioned for
the BBC into allegations of bias in its coverage of events in the Middle East.
The BBC refused disclosure and the Information Commissioner declined to
hear Ss complaint on the grounds that the report fell within the journalism
exception. S appealed to the Information Tribunal under s.57 of the Act. The
Tribunal ruled that it had jurisdiction to hear the appeal and that the report
at the time of Ss request was held for purposes other than journalism, art or
literature. The BBC appealed to the High Court under s.59 and also claimed
judicial review of the tribunals decision. S claimed judicial review of the
commissioners decision. Held, (i) that, although the conclusion led to some
inconvenience, the commissioners decision not to entertain the complaint
did not amount to a decision for the purposes of s.50 of the 2000 Act and
therefore the tribunal had no jurisdiction to entertain an appeal; (ii) that
journalism extended to journalistic activity as well as journalistic product and
the commissioners view that the report was held for the purposes of journalism
was lawful, rational and properly open to him.
British Broadcasting Corporation v Sugar [2007] EWHC 905 (Admin);
[2007] 1 W.L.R. 2583, Davis J.
154
Public Law
Confidentiality
See also BROADCASTING
No right to privacy: Article 8 ECHR
Breach of confidence; Confidential information; Photographs; Right to
respect for private and family life
M, aged 18 months and the son of a celebrated writer, was covertly
photographed in a public street in Edinburgh without his or his parents
knowledge and consent. He suffered no distress. The photograph was published
in a newspaper. Through his litigation friends M sought an injunction to
restrain further publication of the photograph. Held, that, after the decision
of 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 and
sporting activities, which were clearly intended to be enjoyed in the company
of family and friends without intrusion, and simple activities such as walking
down the street or visiting shops, which presumptively should not attract
any reasonable expectation of privacy; that the facts pleaded were insufficient
to engage Ms Art.8 rights and the claim based on breach of confidence or
invasion 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 Affairs
Committee, which concerned the Governments proposals for reform of
freedom 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 Involvement
in Health Act 2007 amend Sch.5 to the Government of Wales Act 2006 and
confer additional powers on the National Assembly of Wales in the area of
local government.
Current Survey 155
Human rights claims and Scotland Act

Damages; Devolution issues; Human rights; Limitation periods; Prison
governors; Scotland; Scottish Ministers; Segregation units; Ultra vires acts
A number of prisoners and former prisoners applied for judicial review of
decisions 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 just
satisfaction for breaches of their rights under Art.8 ECHR. Section 7(5) of
the Human Rights Act 1998 provides that a claim under that section against
a public authority must be brought before the end of (a) the period of one
year beginning with the date on which the act complained of took place,
or (b) such longer period as the court or tribunal considers equitable having
regard to all the circumstances. The relevant provisions of the Scotland Act
1998 were brought into force before those of the Human Rights Act. Section
129(2) of the Scotland Act provides that certain sections, including ss.57(2) and
100, shall in that event have effect until the time when that Act [the Human
Rights 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 to
do 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 Rights
Act. Section 100(3) provides: This Act does not enable a court or tribunal
to award any damages in respect of an act which is incompatible with any of
the Convention rights which it could not award if section 8(3) and (4) of the
Human Rights Act applied. The Scottish Ministers produced a large number
of documents in the proceedings, but some entire documents and parts of other
documents were blacked out on the grounds that disclosure would be contrary
to the public interest. Counsel for the petitioners were permitted on terms of
confidentiality to consider the blacked out parts. The Lord Ordinary declined
to read the relevant documents and concluded that the petitioner had not made
out a case that the material was likely to give substantial support to any specific
issue. Held, (i), Lord Scott of Foscote and Lord Mance dissenting, that a person
who claimed that an act or failure to act of a Scottish Minister was outside
devolved competence because it was incompatible with a Convention right
should be able to seek a remedy on the ground that that was ultra vires in terms
of the Scotland Act, and, since s. 100 of the Scotland Act did not mention
the time limit in s.7(5) of the Human Rights Act, that limit did not apply to
proceedings under the Scotland Act; (ii) that a governor exercising a power
under r.80 of the 1994 Rules was exercising a specific power conferred on
governors and was not acting as a member of the Scottish Executive; (iii) that
the question of when time began to run for the purposes of s.7(5) in the case of
a continuing breach of a Convention right was for present purposes academic;
(iv) that it would not be appropriate in the present circumstances to reach a
decision on whether proportionality was a relevant complaint of unlawfulness
at common law, since it was not clear what need there would be to determine
that issue; (v) that the Lord Ordinary could not properly have performed the
156
Public Law
task of determining the claim to public interest immunity without inspecting

the 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 of
Parliament; Emergency powers; Judges; War
The Secretary of State for Justice announced the publication of three
consultation 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 third
with protests in Parliament Square (Cm.7235). Space will be made available
in the forthcoming constitutional reform Bill for any agreed changes to
the governance of the National Audit Office emerging from a review.
The Government will, starting in November 2007, publish annually its
national security strategy. Parliament should in future have a clear role in
the appointment of members of the Intelligence and Security Committee.
The Government will not proceed with proposals to limit media access to the
coroners 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 Select
Committee on the Constitution on the relations between the executive,
the judiciary and Parliament is Cm.7223.
Discrimination
Equality
Equality; Reports
The governments response to the 6th report from the Communities and Local
Government 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 for
the Electoral Commission on the conduct of the May 2007 elections for the
Scottish Parliament and local authorities (H.C.Deb., Vol.465, col.165, October
23, 2007).
Electoral Commission
Electoral Commission; Reports
The governments response to the 11th report of the Committee on Standards
in 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; Serious
offences
Powers of search, seizure etc of property are given by the Serious Crime
Act 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 of
Revenue 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 governments responses to the 6th and 7th reports of the Public Administration Committee, dealing respectively with the business appointments rules
and the Ministerial Code, are HC 1087 and 1088 (20062007). The Governments response to four of the Committees earlier reports on ethics and
standards, skills for Government, machinery of government changes and the
publication of political memoirs are respectively HC 88, 89, 90 and 91
(20072008).
158
Public Law
Human Rights
See also PRISONS
Articles 5 and 6: Control orders
Judicial decision-making; Non-derogating control orders; Right to
liberty 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 the
grounds that he had reasonable grounds for suspecting them of involvement
in terrorism-related activity and that the statutory conditions were satisfied.
The effect of the orders was to confine the individuals in specified property
for 18 hours per day and to subject them to various other restrictions both
during that period and during the remaining six hours. On a hearing under
s.3(1) of the 2005 Act the judge held that the effect of these various restrictions
amounted to a deprivation of liberty under Art.5 ECHR and that the order
should be quashed. Held, (i), Lord Hoffmann and Lord Carswell dissenting,
that deprivation of liberty had an autonomous meaning wider than detention
in a particular place and it was for the courts to assess whether the cumulative
effect 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 and
considering the totality of the restrictions had followed the correct approach
and his decision was unassailable; (ii), Lord Hoffmann dissenting, that the
Secretary of State had no power impose a control order incompatible with
Art.5, the control orders were nullities, their defects could not be cured by
judicial 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) of
the Prevention of Terrorism Act 2005 to make a non-derogating control
order 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 for
permission was supported by an open and a closed statement. The justification
for the order was contained in the closed statement. Following the submissions
by the Secretary of State and the view of the special advocate appointed to
represent MB, the judge accepted that it would be contrary to the public
interest to disclose the closed material to MB but granted a declaration that
the procedures in s.3 of the 2005 were incompatible with MBs right to
a fair trial under Art.6(1) ECHR. The Court of Appeal allowed an appeal
by the Secretary of State. In a separate case the Secretary of State made a
non-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 that
the justification for the order lay in closed material not disclosed to AF. He
concluded that the cumulative effect of the restrictions amounted to a breach
of Art.5 ECHR, but declined to make a declaration of incompatibility. He
allowed 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, the
judge in the case of AF should not have concluded that there was a breach of
Art.5; (ii) that the proceedings did not involve the determination of a criminal
charge for the purposes of Art.6, but a person against whom an order was
proposed was entitled to procedural protection commensurate with the gravity
of the potential consequences; that any restrictions in the interests of national
security of the individuals right to be informed of the case against him and to
respond to it had to be mitigated by procedural means such as the appointment
of special advocates; that the provisions in para 4 of the Schedule to the 2005
Act were to be read down under s.3 of the Human Rights Act 1998 so as to
take effect only where it was consistent with fairness; that both cases should be
remitted 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 control
orders; Right to liberty and security; Secretaries of State; Terrorism
Section 8(2) of the Prevention of Terrorism Act 2005 provides that the
Secretary of State must consult the chief officer of the police force about
whether there is evidence available that could realistically be used for the
purposes of a prosecution of the individual for an offence relating to terrorism.
The Secretary of State made a non-derogating control order against E under
s.2(1) of the Act, imposing a 12-hour curfew and other restrictions. The
Secretary of State became aware of two judgments in the Belgian courts
implicating E in terrorism-related offences, but did not disclose this to the
chief officer of police when the chief officer informed the Secretary of State
when the order was due for renewal that there was insufficient evidence to
prosecute E. Held, (i) that, having regard to the duration and conditions of the
curfew, there was no infringement of Art.5 ECHR, (ii) that compliance with
s.8(2) was not a precondition to the making of an order under s.2; that the
Secretary of State was under an implicit continuing duty to keep the prospects
of prosecution under review, but the failure to disclose the Belgian judgments
had neither materially contributed to nor vitiated his decision to renew the
order.
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
160
Public Law
Article 6: Evidence in cases of sexual offences

Disclosure; Previous convictions; Right to fair trial; Scotland; Sexual
offences
Section 275A of the Criminal Procedure (Scotland) Act 1995 (inserted by s.10
of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002) has
the effect, where an accused has succeeded in persuading the court to admit
evidence of a kind that satisfies the conditions in s.275(1), of opening up the
disclosure of his record of previous convictions for sexual offences. Held, that
s.275A, properly applied, does not violate the accuseds right to a fair trial, and
s.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 its
performers list pursuant to reg.13 of the National Health Service (Performers
Lists) Regulations 2004. The effect of the suspension was to prevent M from
using his surgery premises for performing services to his NHS patients and
from performing NHS services anywhere else, but he remained free to provide
services to private patients at those premises or elsewhere. Collins J. held that
the suspension was unlawful, and the trusts did not appeal on that decision, but
did appeal against his ruling that the suspension amounted to an interference
with Ms possessions contrary to Art.1 of the First Protocol to the ECHR.
Held, allowing the appeal, that, since M was prevented by regulation from
selling the goodwill to his practice, his goodwill had no economic value, and
likewise his personal permission in the form of inclusion on a personal list had
no economic value, and so his personal right to practise in the NHS was not a
possession within the meaning of the article.
R. (on the application of Malik) v Waltham Forest NHS Primary Care
Trust [2007] EWCA Civ 265; [2007] 1 W.L.R. 2092.
Current Survey 161
Squatters rights
Adverse possession; Agricultural land; Legitimate aim; Limitation
periods; Peaceful enjoyment of possessions; Proportionality
P, a company, owned land over which G had grazing rights until December
1983. G was instructed to vacate the land but did not do so. From 1984
until 1999 G continued to occupy the land without permission. In 1997 G
registered cautions at the Land Registry against Ps title on the grounds that
he had obtained title by adverse possession. P sought the cancellation of the
cautions and also sought possession of the land. G relied on the Limitation
Act 1980 which barred a claim for recovery after 12 years and on the Land
Registration Act 1925, which provided that after the end of the limitation
period, the registered owner held the land on trust for the squatter. The House
of Lords upheld the decision of the High Court that P had lost its title to the
land. Held, by 10 votes to 7, that Art.1 of Protocol 1 was applicable; that P
was 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 and
similar provisions were found in a large number of European countries; that
the limitation period had been in force for many years, P was well aware of
the provisions and very little action on its part was required in order to stop
time running; that a requirement of compensation for loss of the land would
sit uneasily with the purpose of a limitation period; that the limitation period
did not upset the fair balance required by Art.1.
J.A. Pye (Oxford) Ltd v United Kingdom (Application No.44302/02) The
Times, 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 been
published: 21st (HL179/HC1056 (20062007)) Human Trafficking: Update;
1st (HL5/HC72 (20072008)) Government Response to the Committees 18th
report of Session 2006-07: The Human Rights of Older People in Healthcare. The
Government reply to the Committees 19th report (Counter-terrorism policy and
human rights) is Cm.7215.
Immigration and Race Relations

See also JUDICIAL REVIEW
UK Borders Act 2007
Biometrics; Border controls; Detention; Powers of seizure
162
Public Law
Sections 14 of the UK Borders Act 2007 give powers to designated

immigration officers to detain individuals pending the arrival of the police.
Sections 515 confer powers to make regulations requiring those subject to
immigration control to apply for a biometric immigration document recording
external physical characteristics and imposing penalties for non-compliance.
Sections 1621 contain miscellaneous provisions relating to the treatment of
claimants. Sections 2231 deal with enforcement provisions including the
seizure of cash and property and arrest. Sections 3239 specify the conditions
and procedure for the deportation of prisoners who are foreign nationals.
Sections 4047 provide for the sharing of information between agencies and
confer powers on an immigration officer, a police constable or a police
civilian to search premises for certain purposes. Sections 4856 create a single
independent 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 grounds
that they could be relocated internally to Khartoum. The decision was upheld
by the Asylum and Immigration Tribunal, whose decision was reversed by the
Court of Appeal. Held, (i) that the finding of the tribunal that the applicants
would not be at risk of persecution in Khartoum had not been challenged; (ii)
that the Court of Appeal had been wrong to reject the tribunals finding that it
would not be unreasonable or unduly harsh to return them to Khartoum, since
it was clear (a) that the tribunal had not on a proper reading of their findings
decided that relocation could not be unduly harsh unless the conditions were
liable to infringe Art 3 ECHR and (b) the tribunal had not excluded the
conditions the applicants enjoyed in Darfur in considering whether it would
be 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 followed
in making applications for judicial review of deportation decisions and in
seeking to appeal to the Court of Appeal. Failure to adhere to the principles
could lead to professional sanctions.
R. (on the application of Madan) v Secretary of State for the Home
Department [2007] EWCA Civ 770; The Times, August 27, 2007.
Current Survey 163
Judicial Review
Scope of rule against fettering
Licences; Peaceful enjoyment of possessions; Personal licences; Security
Industry Authority Rules; Security industry; Ultra vires
Section 3 of the Private Security Industry Act 2001 makes it an offence for a
person to engage in any licensable conduct, including door supervision, except
under and in accordance with a licence under the Act. The Security Industry
Authority has a duty under s.7 before issuing any licences to prepare and publish
a document setting out the criteria which it proposes to apply in exercising
its powers under the Act. The published criteria included an automatic bar
of five or two years on applicants who had committed a relevant serious or
significant offence. Three claimants, who had been door supervisors for many
years under the self-regulatory scheme existing prior to the 2001 Act, were
refused licences in accordance with these criteria and sought judicial review
of the authoritys refusal to change the criteria. Held, (i) that the elimination
of criminality among door supervisors was one of the aims of the 2001 Act
and 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 authority
to take decisions conferring benefits or imposing burdens without expressly
authorising the authority to make rules or establish a policy, the authority
should not fetter its discretion, but where, as under the 2001 Act, Parliament
had expressly conferred a rule-making power, the only question was whether
the rules were intra vires the statutory power, rational and proportionate, and
the rules in question satisfied those tests; (iii) that it was doubtful on present
authority if the permissions enjoyed by the claimants prior to the Act were
possessions 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 justified
under 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 Service
about advice given by a financial adviser. The complaints arose under the
ombudsmans compulsory jurisdiction (s.227 of the Financial Services and
Markets Act 2000). In the first case the ombudsman directed the firm to carry
out a loss assessment and to make redress according to regulatory guidance.
In the second case the ombudsman gave a ruling that would involve the
164
Public Law
firm in providing financial compensation. In both cases the firm refused to

pay sums exceeding 100,000. Section 229(2) of the 2000 Act provides that
a determination may include (a) an award against the respondent of such
amount as the ombudsman considers fair compensation for loss or damage
. . . (a money award) (b) a direction that the respondent takes such steps in
relation to the complainant as the ombudsman considers just and appropriate.
Section 229 (5) provides: A money award may not exceed the monetary
limit. The relevant rules provided that the monetary limit was 100,000.
Held, (i) that the firms were entitled to raise in proceedings for the enforcement
of the award the question whether the ombudsman had jurisdiction to make
the awards he purported to make and were not confined to judicial review;
that there was nothing in the 2000 Act ousting the courts jurisdiction to
consider any invalidity in the award as a defence to the proceedings; (ii) that
the ombudsman had no power under s.229 (2) (a) or (b) to make an award that
would 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) has
subsequently been amended by legislation, the decision in R. (on the application
of G) v Immigration and Appeal Tribunal [2005] 1 W.L.R. 1445 is still binding
on the Court of Appeal, nor has it been undermined by subsequent decisions
of the House of Lords. It is therefore an abuse of process to challenge by
way of judicial review decisions of the AIT made under the statutory review
procedure in the Nagtionality, Immigration and Asylum Act 2002.
R. (on the application of F) (Mongolia) v Asylum and Immigration
Tribunal [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 Secretary
of State to invite local authorities to make proposals which they consider
would contribute to promoting the sustainability of local communities. The
Secretary of State must decide, after considering a short-list drawn up by the
selector appointed to consider the proposals, which of the proposals should be
implemented.
Current Survey 165
Greater London Authority Act 2007

Emergency planning; Greater London; Housing policy; Local
authorities powers and duties; Planning control; Transport
Part 1 (ss.116) of the Greater London Authority Act 2007 amends the Greater
London Authority Act 1999 in respect of its general functions. Parts 25
(ss.1727) contain provisions relating to transport, the London Development
Agency, 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.2936) deals with planning functions. The Mayor is given power to
determine planning applications which are of potential strategic importance.
Parts 811 (ss.3759) deal with environmental functions, culture, media and
sport and miscellaneous functions.
Local Government and Public Involvement in Health Act 2007
Health care; Local authorities powers and duties; Patients rights
Part 1 (ss.130) of the Act deals with structural and boundary change in
England. These will inter alia enable proposals to be made for local authorities
in two-tier areas to move to a unified structure. Part 2 (ss.3161) deals with
electoral arrangements. Sections 3154 enable district councils in England to
seek to change the electoral arrangement, e.g. by moving to an arrangement
at which the entire council is elected simultaneously. Councils may also
request single-member electoral areas. Part 3 (ss.6274) deals with executive
arrangements for councils in England and amends the Local Government Act
2000 in relation to such matters as referendums on new forms of executive
arrangements. Part 4 (ss.75102) deals with parishes. Part 5 (ss.103128) deals
with co-operation of English authorities with local partners. Part 6, 7 and
8 (ss.129167) deal with bye-laws, best value and inspection and audit. Part
9 (ss.168182) deals with the Commissioner for Local Administration in
England. Part 10 (ss.183204) deals with ethical standards. Parts 11, 12 and
13 (ss.205220) deal with joint waste authorities, entities controlled by local
authorities and the Valuation Tribunal for England. Part 14 (ss.221234) deals
with the involvement of patients and the public in health and social care.
For Pt 15, see CONSTITUTION. Parts 16 and 17 (ss.236246) contain
miscellaneous and final provisions.
Standards
Annual reports; Standards Board for England
The report of the Standards Board for England for 20062007 is HC1009
(20062007)
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Natural Justice
See also PRISONS
Appearance of bias: Article 6 ECHR
Bias; Crown Prosecution Service; Juries; Jurors; Police officers; Right to
fair trial
The jury at the trial of A on a charge of attempted murder were to adjourn
over a weekend. The foreman informed the judge that he was a serving police
officer who was due to be on duty and might encounter some of the police
officers involved in the case. The judge told him not to report for duty. G
had been searched by B, a police officer, and was later convicted of assault
occasioning actual bodily harm and having a bladed or pointed article. There
was a dispute on the evidence between G and B as to the manner of the
search and what was said. Gs solicitor later discovered that M, a member of
the jury, was a police officer who had at one time served in the same police
station as B, although they did not know each other. W was charged with
rape. A member of the jury, MJ, wrote to the court before the trial to say that
he had been a member of the Crown Prosecution Service since 1986. The
judge ruled that, in the light of current legislation, he could see no objection
to MJ serving on the jury. Held, (i) that the relevant principle was to discern
whether a fair-minded and informed observer would conclude that there was
a real possibility of bias; (ii) that in the case of A there was no contest between
his evidence and that of the police and there was no appearance of bias in the
presence of the officer on the jury; (ii), Lord Rodger of Earlsferry and Lord
Carswell dissenting, that the convictions of G and W should be quashed; in the
case of G there was a close local connection and disputed evidence between G
and the police; in the case of W, the judge had given no serious consideration
to the issue of bias and there was a clear appearance of bias if an employed
Crown prosecutor were to sit as a juror in a prosecution brought by his own
authority.
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 and
family life; Vulnerable adults
When a care worker is provisionally included in the protection of vulnerable
adults list under s.82(4)(b) of the Care Standards Act 2000, the result under
s.89 is loss of present employment and an embargo on obtaining any other
employment in a care position. Held, that s.82(4)(b) is to be interpreted under
s.3 of the Human Rights Act 1998 as requiring the Secretary of State to give
workers 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 vulnerable
adult 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 purported
acquisition of his land was unconstitutional and unlawful. He wished to rely
on a statement by the Prime Minister during a debate explaining why the
government had taken the decision compulsorily to acquire Ts land. On an
application to strike out those parts of the claim on the grounds of parliamentary
privilege, held, (i) that, having regard to Art.9 of the Bill of Rights 1889 and
the decision in Prebble v Television New Zealand Ltd [1995] 1 A.C. 321, T
should be able to rely on the statement as a record of what was said as to the
reasons for the acquisition, although it would not be permissible to impugn
the statement itself, (ii) that Ts right of access to the courts would be unduly
undermined if he could not rely on the statement and s. 16 of the House of
Assembly (Privileges, Immunities and Powers) Act had to be adapted to enable
evidence 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 18
UNC candidates were elected to the House of Representatives. The President
appointed the leader of the PNM party as Prime Minister and he then appointed
the 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 a
Speaker but failed to do so because of the equality of votes. The President
dissolved Parliament and at the subsequent election the PNM party won a clear
majority. The authorities of the House decided that, as the elected members
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Public Law
had been unable to take the oath of allegiance because of the failure to elect
a Speaker, they were ineligible to receive the parliamentary salaries for the
relevant period. Rule 91 of the Standing Orders of the House provides: In
any matter not herein provided for, resort shall be had to the usage and practice
of 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 were
entitled to remuneration. Held, that, although a member could not take part in
proceedings until he had taken the oath of allegiance and Erskine May states
that salary becomes payable when a member of the House of Commons has
taken the oath, nevertheless it is difficult to imagine a modern, democratic
state in which a member of the lower House at least is not paid and there is
no British precedent for the current situation; that it must be inferred that the
framers of the Constitution intended the parliamentary system to be fair and
even-handed; that the implied constitutional right to receive a salary when a
member was willing and able to take the oath must prevail over a contrary
procedural 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; Qualified
privilege
C brought proceedings for damages for libel in respect of a newspaper article,
which also appeared on its website. The newspaper relied on the defence
provided by s.15 and para.1 of Sch.1 to the Defamation Act 1996 and argued
that 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 decide
whether the extraneous material added by the newspaper rendered the article as
a whole lacking in qualities of fairness and accuracy, having regard to the extent
of the extraneous non-privileged material, the severability of that material and
the degree of connection between the privileged material and the extraneous
material; that, applying those tests, relevant parties in the article were protected
by privilege.
Curistan v Times Newspapers Ltd [2007] EWHC 926 (QB); [2007] 4 All
E.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 Committee
on the Modernisation of the House of Commons (HC 337 (20062007)),
which concerned the role of the backbench member, and approved the
Current Survey 169
proposals for changes in the procedures and practices of the House set out in
the Governments response to the report (Cm.7231), including the proposals
for 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
(20062007)) concerns the conduct of Mr Martin Salter and Mr Rob Wilson.
The 1st report of the Committee (HC94 (20072008)) concerns the conduct
of Mr Elfyn Llwyd, Mr Adam Price and Mr Hywel Williams concerning
newspaper advertisements in the week preceding the Welsh Assembly elections.
The annual report of the Parliamentary Commissioner for Standards for 2006
is HC1012 (20062007).
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 Board
to undertake review of their sentences. The Board was a non-departmental
public body operating under the sponsorship of the relevant department of
state. Sponsorship had been transferred from the Home Office to the Ministry
of Justice. Held, that the relationship of sponsorship created what objectively
appeared to be lack of independence and to cause the sponsoring department
sometimes to treat the board as part of its establishment; that there were
documented instances of the use of the powers of the department inconsistent
with the need to maintain objective independence; that the claimants were
entitled to a declaration that under the common law and Art 5(4) ECHR the
board 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 detained
after the expiry of the tariff period. In one case he claimed that he had not been
afforded an opportunity to undertake offending behaviour work or courses in
prison 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 and
periodic means of assessing a prisoners risk, was arbitrary and unreasonable
and 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 for
correspondence; Right to respect for private and family life; Scotland;
Telephone calls
A prisoner governor attached a pre-recorded message to all outgoing telephone
calls 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) Act
1989. The Lord Ordinary granted declarator that the practice was contrary
to Art.8 ECHR. Held, that the Lord Ordinary had failed to take adequately
into account the Art.8 rights of third parties, namely the recipients of the
calls, particularly where the calls were monitored and recorded; that it could
not be concluded at this stage that the inclusion of the message was not in
accordance with the law; that the case should be remitted to the Lord Ordinary
to 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 offenders
institution. The judge held that he was obliged to hold an enhanced
investigation. Held, dismissing an appeal, that it was for the state to investigate
the facts and explain how the death or near death occurred and not for the
victim or the family to establish some arguable case before that investigation
rook place; that an investigation in the present case would have had to form
the view that potentially the state may have failed in its obligations to hold a
full inquiry.
R. (on the application of JL) (A Youth) v Secretary of State for the
Home 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 Prison
Rules 1999 to enable to director of a contracted-out prison to conduct certain
Current Survey 171
disciplinary hearings relating to prisoners and to take specified measures relating

to segregation and restraint.
Reports
Annual reports; Parole Board
The annual report of the Parole Board for England and Wales for 20062007
is HC1022 (20062007). The annual report for 2006 of the Parole Board for
Scotland is SE 2007/155.
Public Order
See also HUMAN RIGHTS
Serious Crime Act 2007
Serious crime prevention orders
Part 1 (ss.143) of the Serious Crime Act 2007 creates the concept of Serious
Crime Prevention Orders, a civil order made on application to the High
Court, or to the Crown Court on conviction, to protect the public by
preventing, restricting or disrupting involvement in serious crime. See further
under 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 of
involvement in a bank robbery in Northern Ireland. He was interviewed in the
presence of his solicitor. On two further applications by the police they were
given extensions of time to complete the process of interviewing. The police
then sought a further extension. At a hearing before a judge in the presence
of a police superintendent, the police legal representatives, W and his solicitor,
the superintendent gave evidence on oath in support of the application that
they wished to interview W on five further topics. The judge asked what they
were and agreed to a request from the police to exclude W and his solicitor
from the hearing while the matter was explored. When they returned, the
judge granted an extension of time but did not inform W or his solicitor of
what had transpired. W applied for judicial review. Held, that there was no
rule of law that required the police to reveal to a suspect the questions that
they wished to put to him or the topics that they wished to cover, and the
judge 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 to
common law. He had surreptitiously placed a video camera in his rucksack
when 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 one
saw it being carried out; (ii) that, although no one had seen the filming, there
was evidence that there were others present and that was sufficient to satisfy
the requirement that the act was capable of being seen by two or more persons
present.
R v Hamilton [2007] EWCA Crim 2062; The Times, October 16, 2007.
Defence to false imprisonment
Breach of the peace; Demonstrations; False imprisonment; Police powers
and duties; Right to liberty and security
A came to London to take part in a demonstration. S came on his employers
business. They both behaved lawfully throughout, but were held for several
hours behind a police cordon at Oxford Circus and were refused permission
to leave. Held, that in order to prevent an imminent breach of the peace the
police had no alternative but to ask all those in Oxford Circus to remain inside
the cordon; that was a test of necessity which could be justified only in truly
extreme and exceptional circumstances, but the police on the facts had a good
defence to claims in false imprisonment.
Austin v Commissioner of Police of the Metropolis [2007] EWCA Civ
989; The Times, October 29, 2007.
Tort
See also PUBLIC ORDER
Misfeasance in a public office
Amendments; Fresh evidence; Limitations; Lloyds; Misfeasance in
public office
Lloyds names sought to add in long-standing litigation against Lloyds a claim
of misfeasance in a public office. Held, that the Society of Lloyds had wholly
commercial objectives and was not a public officer for the purposes of the tort.
Society of Lloyds v Henderson [2007] EWCA Civ 930; The Times, October
9, 2007.
International Survey 173
Editor: Richard Cornes, Essex University,
United Kingdom
Constitutional law; Democracy; Legal publishing; Terrorism

Correspondents: Australia and South East Asia: Prof. Cheryl Saunders (Centre for Comparative Constitutional Studies, The University of Melbourne,
Australia); Canada: Prof. Jean-Francois Gaudreault-Desbiens (Universite de
Montreal, Canada); France: Roger Errera (Conseiller dEtat honoraire) and David
Marrani (Essex University); Germany: Prof. Dr Beate Rudolf (Freie Universitat, Berlin); India: Dr Shubhankar Dam (Singapore Management University,
Singapore); Israel: Dr Suzie Navot (Colman Law School, Israel); New Zealand
and South Pacific: The Public Law Group (Faculty of Law, University of Auckland); South Africa: Profs Christina Murray and Richard Calland (Democratic
Governance 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: Charles
Banner (Landmark Chambers, London, United Kingdom).1
Editors introduction
In 1956 Public Law was launched:
. . . devoted to publishing scholarly articles, reviews and surveys
that analyse and comment upon leading issues of constitutional and
administrative law in the United Kingdom and abroad (especially in
Europe, USA and the Commonwealth).
For a period in its earlier days the journal covered decisions of the US
Supreme Court. That section was followed by Roger Erreras reports on the
work of the Conseil dEtat. The International Survey continues the journals
commitment to an outward looking approach to what matters in its field,
providing a forum for developing trans-jurisdictional conversations about
matters 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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Public Law
The Survey will draw on the insights of correspondents from around the
globe (and M. Erreras continuing assistance as one of those correspondents
is welcomed). Any such report of this length must be selective. Each quarter
correspondents will report briefly to the section editor the matters they think
worth commenting on from their jurisdiction or jurisdictions. Working from
those preliminary reports the editor will then commission reports, identifying
and pursuing common themes where they arise. Three themes link the reports
this quarter. First, balancing democratic values with the task of responding to
terrorist threats; of comparative interest is how common challenges are leading
to different policy responses. Compare, for example, the approach to managing
suspected terrorists in Australia, Canada, New Zealand, and the United States
reported on below.
The second theme concerns cases and legislation which relate to the
regulation of the democratic processboth securing the probity of those we
elect and seeking to maintain the primacy of the electorates will (expressed in
open and regular elections) as the primary rationale for legislative and executive
action. 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) is
how properly to regulate the funding of parties, legislators, and the electoral
process.
The final theme relates to the composition and operation of supreme and
constitutional courtsthe referees of democracy. The reports under this
theme touch on how these courts can find themselves in play, with actors
from the legislative and executive branches seeking to influence the outcomes
of cases (and the development of whole areas of law) not only by representations
made in individual cases, but also by addressing the composition and operation
of such courts. As reports from Israel, South Africa, and Spain this quarter
indicate, the US Supreme Court is not alone in having its membership and
operation scrutinised for the purposes of seeking to predict, or alter, its future
jurisprudential direction.
Comments are welcomed to rmcornes@essex.ac.uk.
AustraliaHigh Court of Australia on constitutionality of interim
control ordersThomas 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 control
order regime which allows the judiciary to approve, without prior notice to
the person concerned, and without an arrest, trial or conviction, temporary
orders to control a persons movement and communication (Criminal Code
Act 1995 (Cth) Div. 104). In the absence of constitutional or legislative
protection 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 argued
in this case, without success.
The High Court accepted that the interim control orders were, in large
part, an exercise of the defence power (s.51(vi) of the Commonwealth of
Australia Constitution Act 1900, the Constitution), supported by the power
to 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 defence
power that embraced threats from within as well as outside Australia, aimed
against people as well as governments, as long, at least, as the threats are
designed to advance a political, religious or ideological cause. In the wake of
this aspect of the decision, it is unclear how much remains of Communist Party
v Commonwealth (1951) 83 C.L.R. 1 in which the High Court held invalid
an attempt by the Commonwealth to dissolve the Australian Communist
Party, as an illegal organisation, on the ground that it had no power to
do so. In a powerful dissent, Kirby J. praised the foresight, wisdom and
prudence of the Court in the era of the Communist Party case, by contrast
with the constitutional era of laisser faire through which the Court is presently
passing ([386][387]).
The majority (Kirby and Hayne JJ. dissenting) also rejected the contention
that the legislation contravened the strict constitutional separation of judicial
power. The plaintiff had argued that the powers being vested in judges
were not judicial in character and therefore could not constitutionally be
conferred on a court by Commonwealth legislation. The argument was
rejected for a combination of reasons that included loose analogies with powers
that historically had been exercised by courts in Australia or elsewhere and
pragmatic acceptance that it was better for a court to exercise such powers than
for 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 a
strict adherence by the issuing courts to the standards which characterise judicial
activities ([59]). The decision was confined to the validity of interim detention
orders only, challenges to other aspects of the regime may be expected in the
future.
AustraliaHigh Court of Australia judgment on constitutionality of
ouster clauseBodruddaza v Minister for Immigration and Multicultural
Affairs [2007] H.C.A. 14
Australia; Constitutionality; Judicial review; Limitations; Ouster clauses
Section 75(v) of the Constitution confers on the High Court jurisdiction in
matters in which a writ of mandamus or prohibition or an injunction is sought
against an officer of the Commonwealth. It is clear that the section secures
judicial review on grounds that amount to jurisdictional error. In the recent
decision of Bodruddaza, the High Court held that the section also precludes
an ouster clause that limits the period within which review may be sought, at
least when the effect of the time limitation is inconsistent with the place of
[s.75(v)] in the constitutional structure.
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CanadaSupreme Court of Canada judgment on detention on

security groundsCharkaoui 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; Terrorist
investigations
The Immigration and Refugee Protection Act 2001 empowered the Canadian
federal government to issue certificates (Security Certificates) declaring the
inadmissibility of foreign nationals or permanent residents on security grounds,
and leading to the detention of those named in the certificates. In sum, the
object of this process was to facilitate the removal of non-citizens suspected of
posing a threat to the security of Canada. Both the certificates and the detention
could be reviewed by a judge of the Federal Court of Canada, but in a process
depriving the individuals targeted of some or all of the most directly relevant
information on the basis of which the certificate had been issued or the detention ordered. The judge reviewing a certificate declaring someone inadmissible
was given the responsibility for summarising the case against the individual concerned. A certificate found reasonable by the reviewing judge became a removal
order which could not be appealed and which was immediately enforceable.
Security certificates had been issued against Charkaoui and his co-appellants
and all had been detained for some time. They challenged the constitutionality
of 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 arbitrary
detention), s.10(c) (guarantee of a prompt review of detention), s.12 (guarantee
against cruel and unusual treatment) and s.15 (equality rights) of the Canadian
Charter of Rights and Freedoms. Recognising the peculiar threat raised by
terrorism, a unanimous Supreme Court of Canada nevertheless held that some
features of the impugned legislative scheme were inconsistent with the Charter.
First, the procedure for the judicial confirmation of certificates and review of
detention, 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 the
denial of a prompt hearing to foreign nationals violated ss.9 and 10(c) because
of their arbitrary nature.
Franceformer President will participate in work of Conseil
Constitutionnel2
Constitution of courts; France; Heads of state
On leaving office in 2007, Jacques Chirac (President 19952007), announced
his 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 courts

elsewhere in Europe, dealing with, inter alia, the review of legislation prior
to its promulgation and monitoring the conduct of elections and referendums;
it remains distinct in that individual citizens cannot petition it directly as
occurs, for instance, in Germany and Spain. While former heads of state
are ex officio members for life, previously only Giscard dEstaing and the
two Presidents of the Fourth Republic have taken up the opportunity to
sit.
The former President joins another three members appointed in February
2007 for a nine-year mandate. Jean Louis Debre, former Chairman of the
Assemblee Nationale, (nominated by President Chirac to chair the Conseil),
Renaud Denoix de Saint-Marc, former Vice-president of the Conseil dEtat
(nominated by the Chairman of the Senat) and, Guy Canivet, former First
President of the Cour de Cassation (nominated by the Chairman of the
Assemblee Nationale).
GermanyFederal Constitutional Court judgment on
wiretappingSecond Senate, 3rd Chamber, 2 BvR 2151/06 of April
30, 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 former
Yugoslav Republic of Macedonia, transported to, and held (secretly) in
a US prison in Afghanistan until 2004. The assumption in Germany is
that the kidnappers were CIA agents. In January 2006, a German court
permitted the prosecutors investigating the kidnapping to tap his lawyers
office and private telephones. It was reasoned that media interest in the
case had increased in late 2005 rendering it possible that those behind
the kidnappers would contact him to offer a silent solution of the civil
suit he had instigated in the United States against the CIA. Upon the
lawyers constitutional complaint the Federal Constitutional Court found a
violation of Art.10 (freedom of telecommunications) of the Basic Law (or
Constitution).
Although telephone surveillance of non-suspects is permitted in relation
to serious crimes, there must be reasons to believe that a suspect will
use the line. The Court was not convinced that there was an increased
probability of a contact attempt since foreign newspapers had already reported
on the case in early 2005. The Court also held there to be a breach of
Art.12 of the Basic Law (free exercise of professions). It held that the
interference was not proportionate because unsupervised contact between
lawyer and client is fundamental for the necessary trust between them
and because lawyers also serve the public interest of a functioning justice
system. These considerations outweighed the states interest in prosecuting the
kidnappers.
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GermanyFederal Constitutional Court judgment on

constitutionality of German participation in the International
Security Assistance Force (ISAF) in AfghanistanSecond Senate, 2
BvE 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 constitutionality of the German contribution to the extended ISAF mandate (sending
reconnaissance airplanes) in Afghanistan. The German military have been participating in the ISAF since its establishment by the UN Security Council. The
mandate, which aims at providing a secure environment for civil reconstruction, was originally limited to Kabul and its surroundings, but it was extended
gradually to cover all of Afghanistan, including the Southern and Eastern
regions. There, a US-led coalition of States has been fighting terrorists under
the banner Operation Enduring Freedom (OEF) since October 2001. In
2003, NATO took over the ISAF command. In November 2006, the NATO
summit of Riga declared that the fight against terrorists is necessary to establish a
secure environment in Afghanistan. ISAF then requested aerial reconnaissance
and monitoring from Germany; the results were to be transmitted to OEF only
if necessary for the success of ISAF operations or the protection of ISAF forces.
The German parliament (Bundestag) consented to all these forms of German
military involvement.
In a procedure instituted by the socialist opposition party, the Court found
that the Government had not infringed upon the constitutional prerogatives of
the Bundestag by participating in the Riga Declaration or by sending the reconnaissance planes. It affirmed an earlier judgment according to which it could find
a violation of the rights of parliament pursuant to Art.59(2)(1) of the Basic Law
only if the Governments actions exceeded the fundamental structure of the
NATO Treaty. The Court declared that common defence was not limited
to the territory of the Member States, but could extend to that of the aggressor
and could also encompass long-term stabilising missions if considered necessary
for the security of the Euro-Atlantic area. In this respect, the Court pointed to
the Security Councils repeated determination that the situation in Afghanistan
constituted a threat to international peace. It emphasised that in such a situation,
it could not replace the Governments evaluation of the situation by its own.
The Court also rejected the applicants submission that through its
involvement with OEF, NATO departed from its purpose of serving
international peace, as required by Art.24(2) of the Basic Law:
With a view to maintaining peace, the Federation may enter into a
system of mutual collective security; in doing so it shall consent to such
limitations upon its sovereign powers as will bring about and secure a
lasting peace in Europe and among the nations of the world.
First, ISAF and OEF are largely separated, and secondly, OEF is based on the
UN Charter. Therefore, even single instances of violations of international law
by OEF would not amount to a systematic transformation of NATOs role.
GermanyFederal Constitutional Court of Germany judgment on
lawfulness of law requiring members of Bundestag to disclose
remuneration for non-parliamentary activitiesSecond Senate, 2
BvE 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 Federal
Constitutional Court was called to decide on the meaning and implication of
the 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 whole
people, not bound by orders or instructions, and responsible only to their
conscience.
At issue was a law prescribing that the parliamentary mandate must constitute
the centre of activities of MPs (the centre rule) and requiring them to disclose
the sources and amount of remuneration they receive from non-parliamentary
activities (the disclosure rule). The Court unanimously considered the centre
rule compatible with the Constitution; four of the eight justices, however,
consented only under the condition that the centre rule is construed so as to
exclude its use as the basis for any control of how MPs use their time. With
respect to the constitutionality of the disclosure rule, the Court was evenly
split (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 economic
independence of MPs through continued exercise of their profession a
protection from undue party pressure. The contrary opinion pointed to
the danger of MPs becoming dependent on special interest groups as clients,
which they characterised as more dangerous, in particular because Art.21 of
the Basic Law acknowledges the role of political parties.
With respect to the disclosure rule, the justices in favour of constitutionality
emphasised transparency as a means to ensure the peoples trust, outweighing
the MPs interest in data protection. They reinforced their conclusion by
reference to constitutional developments in other countries. These justices
grant Parliament a large margin of appreciation in regulating this issue. The
opposing view rejected the idea of a constitutional principle of transparency
and concluded from the special status of MPs as standing between state and
society that their fundamental rights are equally important. This reduces the
margin of appreciation of Parliament and requires closer scrutiny by the
Court.
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Indialegitimacy of confidence vote passed with benefit of

legislators formerly not part of governing partyRajendra Singh Rana
v 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 legislative
assemblies have the authority to adjudicate on the constitutionality of defection
by legislative members of any political party. In particular, a split is valid if the
number of members defecting is more than one-third of the total number of
members in the party. In Rajendra Singh Rana, the Supreme Court concluded
that the Speaker must first rule on the question of disqualification of defecting
members before recognising the validity of any new grouping. Secondly, the
Court concluded that the decision about the validity of the split must be
decided at the time at which the split occurs as opposed to the date on which
the matter is processed for hearing before the Speaker. That is, a defection is
valid 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.
IndiaCash for questionsexistence and reviewability of power
to expel MPsRaja Ram Pal v Honourable Speaker, Lok Sabha (2007) 3
S.C.C. 184
Constitutionality; Expulsion; India; Judicial review; Members of
Parliament
Eleven members belonging to both Houses of Parliament were caught on
camera accepting money from undercover journalists for raising questions
in Parliament. With no reason to disbelieve the video-footage, and after an
internal investigation, Parliament adopted motions expelling the members. It
was argued expulsion was outside Parliaments competence. The Supreme
Court (by a majority) rejected that contention, though affirmed that the
exercise of such power was subject to judicial review.
IndiaSupreme Court of India judgment on the basic structure
doctrine and inability of legislature to exclude review on the basis of
breach of fundamental rightsI.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 they
may not be abrogated even by a constitutional amendmentthe basic structure doctrine. On the other hand, the Ninth Schedule to the Constitution
incorporated through Art.31B immunises legislation included in that Schedule

from judicial review on grounds that it is inconsistent with, or takes away
or abridges any of the fundamental rights conferred by the Constitution. In
Coelho the relationship between the Ninth Schedule and the basic structure
doctrine was considered. Explaining the relationship, the Supreme Court held
that any legislation abrogating or abridging fundamental rights and violative
of the basic structure must be invalidated notwithstanding its inclusion in the
Ninth 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 be
taken into account. Finally, if the validity of any legislation included in the
Ninth Schedule has already been upheld, it would not be open to challenge
such law again on the principles declared by the judgment. However, if any
legislation held to be violative of fundamental rights has been incorporated in
the Ninth Schedule after the doctrine of basic structure was judicially declared,
such a violation remains open to challenge on the ground that it destroys or
damages the basic structure as indicated in Art.21 (guaranteeing right to life
and personal liberty) read with Art.14 (guaranteeing the right to equality) and
Art.19 (guaranteeing certain fundamental freedoms).
Israeltensions between Justice Minister and Supreme Court of
Israel
Administration of justice; Appointments; Israel; Judges; Judicial
independence
The appointment of a new Minister of Justice, Daniel Friedmann, in February
2007, saw the outbreak of notably personal tensions between the executive
and Supreme Court of Israel which threaten to change not only the rules
of the game between politicians and judges, but also the constitutional laws of
Israel. The conflict has a background. Friedmann, a distinguished professor of
private law, was allegedly appointed by Prime Minister Olmert mainly because
of his (Friedmanns) critical views on the Supreme Court. In his newspaper
columns Friedmann has attacked the Supreme Court, focusing especially on its
new president, Justice Beinish. Friedmann has gone so far as to say there were
better candidates than Beinish to lead the Court. The new Justice Ministers
criticisms started shortly after his colleague and friend Professor Nili Cohen was
not appointed to the Supreme Court, in part as a result of Beinishs opposition.
Immediately after his appointment, Friedmann proposed radical reforms
to the judicial system. One reform already approved by the Knesset limits
the terms of the Chief Justice and Deputy Chief Justice, to seven years.
Friedmanns further list of reform projects (for discussion in the Knesset in
late 2007) includes a greater political role in the appointment of judges and
those who exercise independent functions within the Ministry of Justice,
(importantly, the Attorney General and the Head of Public Prosecution), and a
proposal to introduce a Canadian style legislative override clause allowing the
Knesset to save legislation struck down by the Supreme Court.
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New ZealandSupreme Court of New Zealand judgment on review

of security risk certificatespecial advocatesZaoui v Att Gen [2005]
1 N.Z.L.R. 577Zaoui 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 Zaouis security risk certificate before the InspectorGeneral of Intelligence and Security (a retired High Court judge with a
watchdog role over the New Zealand Security Intelligence Service) began
more than four years after Zaouis arrival in New Zealand. During that period,
Zaoui, an Algerian, gained refugee status, and was made the subject of the firstever security risk certificate issued by the New Zealand Intelligence Security
Service (s.114D of the Immigration Act 1987). He also initiated two sets of legal
proceedings that reached the Supreme Court. In the first, the Court granted
him release on bail pending the Inspector-Generals decision (Zaoui v Att Gen
[2005] 1 N.Z.L.R. 577). In the second, the Court clarified the parameters of
the Inspector-Generals review and limited the executives power to deport
Zaoui by requiring the exercise of that power to be consistent with New
Zealands 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 security
information, to which neither Zaoui nor his lawyers would have access. Zaoui
won the right to obtain an appropriately edited summary of the allegations
against him (Zaoui v Att Gen [2004] 2 N.Z.L.R. 339). The Inspector-General
also appointed two special advocates to test the classified security information
against Zaoui during the sessions of the review from which Zaoui and his
lawyers would be excluded. The special advocates were to operate under similar
constraints as their equivalents in the United Kingdom, including the restriction
on communications once they had seen the classified security information.
In September 2007, in the midst of the Inspector-Generals review, the
Director of the Intelligence Service decided that Zaoui was no longer a
security risk, and withdrew the security risk certificate. Having promised to
respect New Zealand law and to stay in contact with the Intelligence Service,
Zaoui will now be permitted to remain in New Zealand.
New ZealandHigh Court of New Zealand judgment on continued
detention of those who are subject to removal orders under the
Immigration Act 1987Yadegary v Auckland Central Remand Prison
[2007] N.Z.A.R. 4364
Detention; Foreign nationals; Lawfulness of detention; New Zealand;
Removal
3
4
John Ip.
Treasa Dunworth.
In Yadegary, the High Court considered the lawfulness of continued detention

of 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 be
detained for longer than three months. Section 60(6) operated as an exception
whereby a person who was obstructing the removal process would not have
the benefit of s.60(7), but would only be released if there were exceptional
circumstances.
The legislation in its current form had been enacted in response to an earlier
decision whereby a detainee who refused to sign a passport application was
released because the statutory three-month limitation had expired. The Court
found that the parliamentary intention was clear: that it was unacceptable that
a person should secure release through deliberately obstructing the removal
process. However, the statutory language was not absolute and in that respect
the 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 would
justify release, the Court adopted the principles enunciated in R. v Governor of
Durham Prison Ex p. Hardial Singh [1984] 1 W.L.R. 704. The Court considered
that Yadegary had no criminal convictions, was of good character and evinced a
low risk of absconding. It accepted evidence that the detention was detrimental
to his mental health, took into account the length of detention (two years at
hearing date) with the prospect of at least another year before arrangements
for removal could take place. The Court placed significant weight on Mr
Yadegarys continued obstructiveness in securing his removal, but noted it was
not a trump card (at [64]). The Court concluded that further detention would
be unreasonable on Hardial Singh principles, and so exceptional circumstances
existed for the purposes of s.60(6) and Yadegary was entitled to conditional
release.
New ZealandSupreme Court of New Zealand judgment on
reverse onus of proof in criminal cases, judicial approach to
obligation to interpret legislation consistently with fundamental
rights under the New Zealand Bill of Rights Act 1990Hansen 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 enactment
consistently with the rights affirmed by the New Zealand Bill of Rights Act
1990, as required by s.6 of that Act (the equivalent of s.3 of the Human Rights
Act 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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Public Law
burden, despite a majority ruling that the full reverse onus was in breach of a
right 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 Justice
considered that s.6 displaces a provisions natural meaning only if a more
rights-consistent alternative is genuinely open in light of the provisions
text and its purpose. Moreover, two judges considered it highly relevant
that the natural meaning was supported by evidence of how the provision was
understood at the time of enactment.
While none of the judges saw any relevant difference between the wording
of s.6 of the Bill of Rights and s.3 of the Human Rights Act, some found
support for the difference in approach in the legislative history of s.3. The
Courts purposive qualification on s.6 effectively mirrors an express provision
in recent Australian human rights legislation (s.32(1) of the Charter of Human
Rights and Responsibilities Act 2006 (Victoria)).
South Africareforms affecting Constitutional Court and
independence of the judiciary
Constitutional law; Constitutional reform; Courts; Judicial
independence; South Africa
Judicial independence may be under threat in South Africa. The Constitution
asserts the independence of courts firmly but the transition from apartheid in
1994 required more. Accordingly, in 2005 the Department of Justice released
five Bills on the judiciary. Amongst many unremarkable provisions were
a number, including a constitutional amendment, with a direct impact on
fundamental constitutional matters: the relationship between the executive and
the judiciary and the role of the Constitutional Court.
Three proposals concerned the independence of the judiciary. They would
have: (i) shifted the authority to appoint the heads of the High Courts from the
Judicial Service Commission to the President; (ii) given the Minister of Justice
final responsibility over the administrative functions, including the budget, of
all courts, while making the Chief Justice head of the judicial authority with
final responsibility over the judicial functions of all courts; and (iii) given the
Minister of Justice control over the rules of court. Provisions in a draft Superior
Courts Bill inter alia regulating leave in superior courts and establishing an
Office of the Chief Justice staffed by the Department of Justice, confirmed
fears that the new proposals allowed unacceptable intervention by the executive
in judicial matters.
Widespread objections to the Bills led President Mbeki to withdraw them in
mid-2006. However, in June 2007, a policy conference of the ruling African
National Congress confirmed the proposals and it is likely that they will be
reintroduced, now with the full backing of the party.
A further proposal is to convert the Constitutional Court, which currently
has jurisdiction over constitutional matters only, into a common-law style
Supreme Court with the power to hear all matters. Even critics of this
proposal accept that the distinction between constitutional and other matters
is illusory and that an extension of the Courts 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 and
how it should determine what matters to hear.
South AfricaSupreme Court of Appeal decision on media and
freedom of expressionMidi Television (Pty) Ltd v Director of Public
Prosecutions (Western Cape) unreported, Supreme Court of Appeal
Case 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 any
risk of prejudice to a fair trial, however speculative, [a ban on publication]
should be ordered. The case involved the broadcasting of a documentary that
included interviews with witnesses to the brutal murder of a six-month old
baby in Cape Town. Nugent J.A.s ruling establishes a high standard for future
cases by holding that:
What is required . . . before a ban on publication will be considered is a
demonstrable relationship between the publication and the prejudice that
it might cause . . . substantial prejudice if it occurs, and a real risk that the
prejudice will occur.
Spainlegislation on financing of political partiesLey Organica
8/2007, de 4 de julio, sobre financiacion
de los partidos polticos,
Boletn Oficial del Estado. July 5, 2007
Political donations; Political funds; Political parties; Spain
Passed in July 2007 (though notably without the support of the Popular
Partythe main opposition party), the Financing of Political Parties Act
addresses the economic activities of political parties and associations. The
Act guarantees sufficient financial resources for political parties and enhances
supervision of their finances, imposing more exacting duties of transparency.
The choice made was for a mixed system, i.e. one that combines private
and public resources although in a decidedly unbalanced manner, with public
contributions to outweigh private ones.
The strong dependency of political parties on public subsidies has been
occasionally criticized but legislators appeared to consider it an antidote against
corruption 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 in
South Africa (2005) 21 South African Journal on Human Rights 509 at p.519.
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Public Law
the novelties introduced by the new regulations, is the banning of anonymous 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 similar
review and restrictions in their economic activities.
Spainreform of the Spanish Constitutional CourtLey Organica
6/2007, de 24 de mayo, Boletn Oficial del Estado, May 25, 2007
Appointments; Constitutional law; Courts; Judges; Spain
The Organic Law of the Spanish Constitutional Court, in addition to setting
out the composition, organisation, and status of the members of the Court,
also contains the procedural code which governs how the Court deals with
constitutional matters. Since its approval in 1979 the law has been modified
on a number of occasions, yet none of the prior reforms had the scope and
ambition of the most recent of May 2007. Potentially, at least, the reform
may lead to dramatic changes in the internal dynamics of the Court and, more
importantly, 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 of
the panels (Salas) derived from the Plenum.7 Although the explicit purpose
of these reforms is to increase the Courts efficiency, the changes may also
aptly be described as likely to induce a change in the Courts work philosophy rather than simply in its mechanics. In the future the amparo will be
reserved for cases of clear constitutional import (independently of the gravity
of damnum suffered by the individual) and the intervention of the Plenum in
constitutional review or in conflicts of jurisdiction will depend on the novelty
of 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 affirmative
action, new Estatutos de Autonoma (the constitutions of the autonomous
communities Spain is divided into), and the reform of the Constitutional
Court). It is also under pressure as the media report almost daily on conflicts
inside a Court evenly divided along ideological lines. The termination, in
December 2007, of the mandate of a third of its members (including the
President) will allow for the entrance of new judges, a circumstance that could
alter the present ideological composition of the Court. The four vacancies are
to be filled by candidates selected by the Senate. The modified law of the
Court requires that the preferences of the Autonomous Communities be taken
formally into account for the first time. It will not be surprising if they propose
candidates with an eye on the pending reviews of constitutionality of their
new Estatutos de Autonoma.
7
The plenary complement of 12 judges is divided into two Salas of six judges each.
United StatesUS Supreme Court changing jurisprudential

direction with new Justicesoverview of October Term (OT) 20068
Appointments; Certiorari; Freedom of expression; Judges; Race
relations; Supreme Court; United States
In his dissent read from the bench on the last day opinions were announced
in OT 2006, Justice Stephen Breyer lamented (while announcing his dissent
in Parents Involved in Community Schools v Seattle School District 127 S. Ct. 2738
(2007)), its 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 new
appointees Chief Justice John Roberts and Associate Justice Samuel Alito. After
11 years of unchanging membership, the Term saw a number of decisions that
marked a distinct change of direction, two of which involve significant shifts
from recent prior decisions.
For example, the United States has struggled for decades over how
to regulate campaign financing consistently with the First Amendments
protection 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 that
prohibited any corporation from broadcasting, shortly before an election,
any communication that names a federal candidate for elected office and is
targeted to the electorate. This provision was designed to prevent use of issue
ads 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 restricting
corporate campaign speech or its functional equivalent do not justify restricting
issue 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. 914
at 930 (2000), the Court had found unconstitutional a state law banning
so-called partial birth abortions because it lack[ed] any exception for the
preservation of the . . . health of the mother and was an undue burden on
the 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 birth
abortions, notwithstanding the absence of a health exception, as promoting
the Governments interest in respect for life; medical uncertainty (whether
health would ever require use of the banned procedure) precluded invalidation
on a facial challenge. An unusually biting dissent by Justice Ginsburg criticised
the Courts departure from Stenberg.
Finally, a set of cases involving efforts by local school systems to maintain
racial integration in public (i.e. state) schools by considering race in pupil
assignments yielded a closely divided decision invalidating the assignment
systems: Parents Involved in Community Schools v Seattle School District, 127 S.Ct.
8 The US Supreme Courts yearly term begins on the first Monday of October. The Court typically
hears arguments from October through April, and continues to release opinions through the end of
June, adjourning until the subsequent first Monday of October. October Term 2006 refers to the
period October 2, 2006 to October 1, 2007.
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2738 (2007). Though the factual circumstances differ, the failure to extend the
reasoning of Grutter v Bollinger, 539 U.S. 306 (2003), upholding the use of race
as one factor in law school admissions, was notable.
Turning to the docket, the US Supreme Court has nearly total discretion
through its certiorari jurisdiction to decide in which, of the approximately
9,000 petitions it receives each term, it will grant review. The number of cases
heard by the Court has fallen over the past 20 years, culminating in a record low
78 cases argued during OT 2006 (by contrast, the Court granted review in 175
cases in October Term 1988). One interesting development is in the increasing
percentage of argued cases involving business issuesnearly 40 per cent of the
cases granted review in OT 2006. An important public law development did
take place at the very end of the Term though, when the Courtin an unusual
decision reversing its earlier denial of certiorariagreed to hear constitutional
challenges by Guantanamo detainees to the Military Commission Act of 2006s
restrictions on courts jurisdiction (Boumediene v Bush, No.06-1195, certiorari
granted June 26, 2007; see also Military Commissions Act, Pub. Law No.
109-366). In two prior decisions the Court had upheld the jurisdiction of
federal courts to consider petitions from Guantanamo detainees, in the face of
government claims that jurisdiction was lacking, and a prior federal statute that
sought to restrict jurisdiction (see Rasul v Bush 542 U.S. 466 (2004); Hamdan
v Rumsfeld 126 S.Ct. 2749 (2006)).
Early in his tenure, Chief Justice Roberts expressed a desire for greater
unanimity in decisions, because 8:1 or 9:0 decisions give more confidence
in and stability to the law.9 In his first term as Chief Justice, the number of
unanimous decisions of the Court increased (37 per cent in October Term
2005, with a further 11.6 per cent in which there were no dissents). In OT
2006, however, the unanimity rate dropped below the rate in Chief Justice
Rehnquists final Term (to 23.9 per cent). There was also an increase in 5:4
decisions, over the prior Term (from 16 to 23). The issues before the Court
ultimately determine the degree of unanimity that can be expected and, as
OT 2006 reminds us, the Chief Justices ability to achieve greater consensus is
limited.
9 See http://abcnews.go.com/Nightline/story?id=2661589&page=1 [accessed November 16, 2007], for

a transcript of the Nightline interview with Jan Crawford Greenburg.
Government and Politics Journals 189
British Journal of Political Science, Vol.38, No.1

Hellwig, T. and Samuels, D., Electoral Accountability and the Variety of Democratic
Regimes, pp.6590.
British Journal of Politics and International Relations, Vol.9, No.4

Jones, P., The Logic of Expressive Collective Action: When will Individuals Nail their
Colours to the Mast?, pp.564581.
Liddle, J., and Michielsens. E., NQOC: Social Identity and Representation in British
Politics, pp.670695.
Morgan, J., A Womans Place, pp.747748.
Widdecombe, A., Feminizing Politics: A Review, pp.749750.
Lovenduski, J., Feminizing Politics: A Reply to Ann Widdecombe and Julie Morgan,
pp.751754.
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.14601485.
Criado, H. and Herreros, F., Political Support: Taking Into Account the Institutional
Context, pp.15111532.
Birch, S., Electoral Systems and Electoral Misconduct, pp.15331556.
European Union Politics, Vol.8, No.4

Weber, T., Campaign Effects and Second-Order Cycles: A Top-Down Approach to
European Parliament Elections, pp.509536.
Justesen, M.K., The Social Choice of EU Treaties: Discrepancies between Voter
Preferences and Referendum Outcomes in Denmark, pp.537553.
Government and Opposition, Vol.42, No.4

Lundberg, T.C., Electoral System Reviews in New Zealand, Britain and Canada: A
Critical Comparison, pp.471490.
Moraski, B., Electoral System Reform in Democracys Grey Zone: Lessons from Putins
Russia, pp.536563.
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Journal of European Public Policy, Vol.14, No.8

Special IssuePolitical 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 Support
for Military Conflict, pp.975997.
Borowiak, C.T., Accountability Debates: The Federalists, The Anti-Federalists, and
Democratic Deficits, pp.9981014.
Journal of Public Policy, Vol.28, No.1

Lehmkuhl, D., On Government, Governance and Judicial Review: The Case of European
Competition Policy, pp.139159.
Parliamentary Affairs, Vol.60, No.4

Holmes, A., Devolution, Coalitions and the Liberal Democrats: Necessary Evil or
Progressive Politics?, pp.527547.
Sloam, J., Rebooting Democracy: Youth Participation in Politics in the UK, pp.548567.
Fieschi, C., Its a Civic Christmas, pp.69199.
Gibbons, V., Lights, Camera, Inaction? The Media Reporting of Parliament, pp.700708.
Political Studies, Vol.55, No.4

McLaren, L. and Johnson, M., Resources, Group Conflict and Symbols: Explaining
Anti-Immigration Hostility in Britain, pp.709732.
Book Reviews 191
Book Reviews
The Court of Appeal. By Gavin Drewry, Louis Blom-Cooper and Charles

Blake. 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 her
prince, and Lord Woolfs reforms have given civil procedure the attention it deserves.
Drewry, Blom-Cooper and Blake shine their spotlight on the Court of Appeal, a hitherto
academically neglected subject but the pivotal court of our legal system, to examine how it
is performing and how it could be improved.
The authors rightly emphasise that, in practical terms, the Court of Appeal is the final
court of appeal for other than public law cases. The Appellate Committee of the House of
Lords rightly does not see its role as correcting errors in the application of settled law, it
hears very few cases a year, and a very large proportion of them are human rights and other
public law disputes. This study identifies (with the assistance of interviews with the then
Master of the Rolls, Lord Phillips of Worth Matravers, and 10 other Lords Justices) how
the 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 of
the Rolls 19621982), Lord Donaldson (Master of the Rolls 19821992) introduced new
working practices to reduce the delays in hearing cases. Counsel were required to produce
written skeleton arguments. Judges began to spend part of their working life out of court
preparing for the hearing rather than coming to the case knowing little more than the
outline until counsel began their oral submissions. Hearings were reduced in length. With
the assistance of the Woolf reforms and the review of the Court of Appeals practices by Sir
Jeffrey Bowman (formerly senior partner in PricewaterhouseCoopers), judges have become
case managers, and greater efficiency, without the sacrifice of high quality and customer
satisfaction, 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 issues
they address. They approve of the modern requirement (in all but exceptional cases such as
those involving personal liberty) for leave to appeal because it enables the Court to focus
its main resources on properly arguable cases. They contend that the case preparation by
judges has not diminished the importance of oral advocacy, but focused it on the central
issues 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 18731883,
whose command of the common law was so great that he rarely reserved judgment. They
identify the very serious problem posed by litigants in person, many of whom use the
valuable resources of the courts as a substitute for psychotherapy when pursuing hopeless
applications. Drewry, Blom-Cooper and Blake make the sensible proposal that court time
could and should be saved by introducing a requirement that if a litigant wishes to make
an application for permission to appeal at an oral hearing, he or she must be represented by
counsel.
As this book explains, the Court of Appeals relationship with the Appellate Committee
of the House of Lords (to become the Supreme Court in 2009) has changed. From 1952 to
1968, over 75 per cent of appeals heard by the House of Lords had received leave to appeal
from the Court of Appeal. Today it is very rare for the Court of Appeal to grant permission
to appeal. Blom-Cooper, Drewry and Blake suggest that it may be appropriate to provide
that 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, for
more information derived from their interviews on what it is actually like to work as a
Court 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 he
had become a member of the Court of Appeal he had wrongly thought that slavery had
been abolished. And the authors are unnecessarily worried (at least in the experience of
this reviewer) that there is a danger of imbalance and dominance at the hearing by a
specialist 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. 476
at 492, Bowen L.J. stated that if no appeal were possible . . . this would not be a desirable
country to live in. Drewry, Blom-Cooper and Blakes stimulating analysis should be read
by 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 Colin

Turpin 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 the
possible extent of change. Colin Turpins British Government and the Constitution has long
been such a work, but the new sixth edition has acquired a co-author in Professor Adam
Tomkins who has his own distinctive approach to problems of the British constitution. Any
fears 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 little
has really changed. There is some useful restructuring, particularly in the first chapter on
the constitutional order, and the updating is extremely valuable, but swathes of the text
are 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 as
possible. That is not to say that Tomkins has made no impact; there are noticeably more
references to the approach in Scottish law than in previous editions, and the reiterated
focus 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 raise
when 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 to
grasp the theoretical and practical intricacies of the British constitution, but Turpin and
Tomkins 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 thorough
without being overly partisan. It might have been useful to develop the Waldron-style points
made in some of the materials about the judiciary being undemocratic, but space is always
tight. 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 littered
with references to sources of further information. Many are the obvious ones, but many are
far less well-known and the cross-disciplinary references, especially to contemporary works
on 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 slightly
unnerving habit of including very long chunks of a judicial opinion, and then moving on
as though there was nothing more to be said. This happens a number of times throughout
the book, but it is especially unfortunate when the authors have themselves made plain that
the 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 such
as M v Home Office2 some critical analysis is surely required (pp.8993)? Certainly students
would welcome something to work from, but other readers will surely ask themselves what
precisely the authors really think about such key decisions. The point is made all the more
important by the knowledge that when they do discuss a case critically, as with the Belmarsh
Detainees case3 (pp.762772), it is done with such clarity and contextual detail that the
reader 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 to
them. The discussion of the separation of powers in Ch.2 as it actually pertains to the British
constitution is probably faultless, but there is very little talk of why the separation of powers
might be important or valuable. Should we think of it as a doctrine to prevent tyranny, to
aid efficiency or both? The history and evolution of the doctrine of ministerial responsibility
in Ch.9 is both interesting and up-to-date, but it moves on without really trying to answer
where the convention is now. Are ministers responsible, accountable, neither, or is there
some other plausible solution? Most student textbooks would not try to answer these
questions, but they usually do raise them as an area to consider. The unwillingness to go
into much detail on the ultra vires debate (pp.656658) is understandable, but to raise the
thorny issue of deference and then treat Farrakhan as though it were the last word on the
matter (pp.680682) surely cannot be sufficient. What these criticisms are really driving at is
the apparent unwillingness of the authors at key points to engage with the really interesting
normative questions. Obviously, any detailed analysis of the different normative approaches
available to any particular question would involve further time and space in what is already
a hefty work, but this reviewer would have liked to see at least a mention of some of the
different 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 and
sections 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 overly
descriptive and is unlikely to figure on most constitutional law reading lists. Having said
that, the lengthy introduction to the law of the European Union in Ch.5which one might
think could be read in other more specialised worksis so well done that it is probably
even 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 know
about the prerogative is forced to jump around Chs 3, 6, 7 and presumably 10 to get a full
picture, 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 and
legitimate expectations is unmentioned in either area, despite it being cited in relation to
the Immigration Rules having legal impact (p.478).
All the criticisms made in this review seem rather minor and nit-picking. They are. It
is difficult to make any foundational attacks on a work that is not attempting to make an
argument, and more importantly, does what it sets out to do so well. Even the typographical
errors that usually litter such publications were few and far between. The fact is that Turpin
and Tomkins have produced a textbook (and despite it containing materials, it is primarily
a textbook) which is masterly in its treatment of a convoluted and evolutionary area of
cross-disciplinary impact. It should be essential reading for students of constitutional law, and
a 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, and
it is a measure of the mastery of both by the authors that the two fade in and out without
undue confusion. Any reader looking for the British constitution, how it works and where
it 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.

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.
3
194
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Civil Justice in the Age of Human Rights. By Joseph M. Jacob. Ashgate

Publishing, Aldershot, 2007. 251 pp. Hb. 65.00.
Ten years ago two pieces of legislation were introduced that had a fundamental effect on
civil 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 the
court to deal with cases justly (CPR 1.1). The particular significance of the CPR from a
public law perspective is that the judiciary were given a very wide discretion in their case
management powers in order to meet the CPRs Overriding Objective. This was in marked
contrast to the paradigm of the preceding Rules of the Supreme Court, which had been that
the 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 immediately
obvious impact. Most judicial and academic attention has focused on the HRAs impact
on the constitutionally more fashionable subjects of the compatibility of primary legislation
under s.4 of the HRA, and of the acts of criminal justice and administrative bodies under
s.6. The civil courts, although they have largely escaped attention to date, are nevertheless
subject 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 the
drafters of the CPR appear to have paid little or no regard to the extensive jurisprudence of
Art.6(1). We might consider this particularly surprising as the architect of the CPR, Lord
Woolf, is an authority on administrative law. However, we also have Woolfs warning to
counsel in Daniels v Walker (Practice Note) [2000] 1 W.L.R. 1382, CA, that he hoped that
judges 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 civil
justice, 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, for
example regarding funding, is concerned with expediency and efficiency. The other, the
Convention, is concerned with identifying a rational system for the recognition of human
dignity and equality. There have not yet been any direct conflicts, but Jacob identifies a
considerable number of areas, for example in relation to evidential privilege and public
interest immunity, and the use of without notice hearings, where the jurisprudence of
the CPR and Art.6(1) appear to take very different approaches. Is either of these streams
stronger 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 for
their enforcement. Moreover, Jacob is surely correct to say that the method of enforcement
tells us something fundamental about societys underlying meaning (p.3). So here the
clash between the CPRs expediency and the Conventions recognition of dignity and
equality 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 on
Evidence, or Impartial and Independent Judges, the chapters making up the book. It
is not a conflict that allows of easy resolution. For example, if it is the case that there is a
duty on the courts to publish their decisions, to support a constitutional principle that such
decisions should be open to public scrutiny (pp.8889), then should this cost of publication
be borne by the parties (as the cause of judgment being given) or by the courts (as the
body under public scrutiny), and is this cost proportionate to the constitutional value of the
public scrutiny?
This book is very heavy reading, and is correspondingly rewarding. This is for three
reasons. First, Jacob departs frequently from his stated brief, of the impact of the HRA
on the CPR, to examine recent developments in the principles that underlie English civil
justice more widely. This includes, for Jacob, the very fact that the pragmatic beast that was
the common law is now keen to establish principles at all. The first and longest chapter,
on Open Justice, is based on Jacobs own belief that openness is the keel which gives
both stability and direction to the legal system (p.45). A benefit of not keeping to the
brief is that Jacob will frequently depart from his main course to explore fully interesting
avenues of inquiry. The second reason is that there is a thorough doctrinal examination of
possible conflicts between the different emerging principles and practices, making extensive
reference 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 of
civil litigation in England comply with the Convention requirement that there be equality
of 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 reason
is 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 developing
an overarching structure. It is therefore not always clear what line of argument some of the
material is following. It is clear from Jacobs conclusion that one of his principal concerns is
that 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 presumably
also of the domestic principle of the separation of powers). That concern is not immediately
visible in the analysis of the preceding chapters, although it does hearken back to his original
concern about societys underlying meaning.
Civil Justice in the Age of Human Rights marks a significant contribution by Jacob to the
development 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 is
a development that is already underway elsewhere in Europe. In France, for example, la
proc`edure civile has frequently now been rebranded as le droit judiciaire, since it concerns in
essence the conduct of the judiciary, one of the three elements of the democratic state, in
its regulation of private affairs. Beyond the contribution of his own arguments, Jacob has
raised a considerable number of issues for further, profitable examination.
Deirdre M. Dwyer*
TransparencyThe Key to Better Governance?. Proceedings of the British

Academy, Volume 135. Edited by Christopher Hood and David Heald. Oxford
University 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 a
vital 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 virtue
of transparency, both as a coherent ideal and on the regimes and practices intended
to give expression to it in the practice of governance. The volume originated from a
workshop in 2005 hosted to coincide with the entry into force of the United Kingdoms
Freedom of Information Act, co-sponsored by the British Academy and the Economic
and Research Council Public Service Programme. The result is a timely, thoughtful and
thought-provoking collection which examines the theory and practice of transparency
within governance regimes in a variety of national and EU contexts from a range of
disciplinary and sub-disciplinary perspectives. The editors identify their three-fold aims as
seeking: (a) to map the history of transparency and cognate doctrines in government and
public policy; (b) to collect and compare ideas about transparency across different academic
disciplines; 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 the
discussion, with contributions by the collection editors on the theme of transparency as
a term, an idea and a movement. Christopher Hood provides an illuminating intellectual
history of transparency, seeking to map some of its various strains and meanings. Although
transparency has attained what he describes as quasi-religious significance in governance
debates, he identifies at least three strains of ideas about transparency that originate from
pre-20th century ideas in different contexts and locations: that government should operate
according to stable, predictable rules, as opposed to governance by discretion; that social
affairs should be conducted with a high degree of frankness, openness and candour to
ensure the integrity of public officials; and a related idea that the social world should be
made knowable through methods analogous to the natural sciences. When he turns to 20th
century doctrines of transparency, Hood identifies at least six or seven different locations
* British Academy Postdoctoral Fellow, University of Oxford.
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Public Law
in which the term has become prominent, broadly organising them around three sites
of discussion: international governance within supranational institutions; national and subnational government, particularly in relations between executive government and its citizens;
and in corporate governance. Although all these ideas take some view of openness and
rules and behaviour, their application to very different subjects and sometimes contradictory
underlying doctrine, lead him to doubt that they add up to a single big idea. Nor are they
new or coherent. The historical and contextual map which he charts is complemented by the
conceptual anatomy which David Heald provides in the following chapter. Heald sketches
the outlines of an analytical framework based on a series of conceptual distinctions that seek
to address the relationship between transparency and several related ideas and the different
ways in which transparency may be designed to operate. Thus he identifies variation in
the direction of transparency (upwards/downwards, or horizontally outwards/inwards), its
orientation (event versus process), temporal character (retrospective versus real time) and its
quality (nominal versus effective). In seeking to understand the dynamics and effectiveness of
policy instruments intended to promote transparency, he emphasises the critical importance
of sensitivity to the context in which transparency measures and mechanisms are located.
The contributions in Part II explore the value of transparency from contrasting disciplinary
perspectives. It is here that the lofty ideals of transparency which public lawyers frequently
espouse lie in a stark and somewhat uncomfortable opposition to the varied positions
taken 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 to
democracy that it deserves international recognition as a human right. To this end, he boldly
asserts that freedom of information is necessary for freedom of speech to have value, that it is
a 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 against
other human rights such as the right to life and the right to privacy, but he does not elaborate
on how this balancing is or ought to be achieved. David Healds analysis of transparency is
considerably more fine-grained and contextual. Unlike Birkinshaw, he does not characterise
transparency as a human right, but as a set of contested, non-linear relationships with other
values, that sometimes clash and sometimes yield synergies. Where clashes arise, he points
to 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 sunlight
and warn of the danger of over-exposure, and (b) sociological literature demonstrating
the positive contribution of ignorance to social functioning, which may explain why the
trade-off observed by economists arises. He grapples directly with the value of transparency
and its potential to conflict with other valued goods, which he lists as: effectiveness, trust,
accountability, autonomy and control, confidentiality, privacy and anonymity, fairness and
legitimacy. For Heald, transparency is of instrumental value, arising from its contribution
to the primary values of effectiveness, trust, accountability and fairness. Careful attention to
the specific habitats in which transparency resides, as well as its directions and variety, is
therefore required in order to make a meaningful normative assessment of its contribution.
While David Healds view of transparency is much more equivocal than that of
Birkinshaw, Onora ONeils contribution is perhaps the most sceptical of all. She begins
with the paradox that it is generally presumed that transparency increases trust and the
trustworthiness of institutions, yet the growth of transparency in contemporary governance
has led to a decline in trust in public officials and institutions. She speculates on why
this paradox has arisen. For her, the answer lies in the distinction between transparency
and communication. Information, she observes, is not like a homing pigeon: it does not
wing its way to relevant and receptive audiences. It can achieve little unless the material
disseminated is made accessible and assessable by relevant audiences, and actually reaches
those audiences. Thus for ONeil, transparency is the fifth wheel on the wagon of public,
commercial and professional accountability, providing an incomplete basis for either
securing trustworthy performance or for placing and refusing trust. This incompleteness
may be at least partly explained by the principal-agent perspective outlined in Pratts
contribution. From an economic perspective, transparency corresponds to the ability of
the principal to observe what the agent does, so that in general, more information about
the agents behaviour makes the agent more accountable and more likely to work for
the good of the principal. However, excessive transparency may create incentives for the
agent to behave in ways that damage the principal, and this might help to account for the
counterproductive tendencies which ONeil observes in the practice of transparency.
Book Reviews 197

In Part III the discussion shifts from the abstract to the concrete by exploring the
impact of transparency on institutional behaviour. Taken together, the contributions in
this section evidence the ways in which laws intended to enhance transparency may be
diluted, side-stepped and undermined by bureaucratic and institutional practice. Drawing
on the experience of several Commonwealth countries, Alasdair Roberts argues that the
laudable aims of freedom of information laws of increasing trust in government and
heralding a new culture of openness in executive government tend in practice to generate
contrary outcomes. He claims that governing institutions in Westminster systems have
proved particularly resilient, capable of rejecting freedom of information laws or developing
new routines to minimise their disruptive effect. He identifies several avoidance strategies,
including direct challenges to the scope of the right (by adopting narrow interpretations
of disclosure obligations, and increasing fees for freedom of information applications) and
informal methods of resistance through changes to record-keeping practices, including
refraining from creating records altogether. He also observes that the introduction of access
to information laws has also been accompanied by corresponding attempts by central
government to exert tighter control over government information, to reduce information
leakages, and implementing warning systems designed to alert central communications
staff to potentially damaging freedom of information requests early in order to manage the
governments response. Andrew McDonald, who was centrally involved in the development
of the United Kingdoms freedom of information laws, endorses Roberts observation that
the introduction of freedom of information legislation does not eliminate conflicts over
the disclosure of government of information, but simply shifts and shapes the terrain
over which such conflicts take place. Because the broad notion of open government is
sufficiently capacious, allowing considerable variation in access to government information
regimes across jurisdictions, several significant methodological challenges are involved in
comparative public policy. Roberts therefore calls for rigour in comparative analysis of
freedom of information regimes, informed by an understanding of local political context,
bureaucratic culture, scope of legislation, its practical value to applicants and an awareness
of the limitations of freedom of information statistics. Accordingly, he is wary of drawing
general conclusions from the examples of avoidance behaviour cited by Roberts, although
he accepts that public usage and understanding is limited, and that it has not delivered all
that its advocates hoped.
James Savage also considers how transparency obligations are vulnerable to evasion or
manipulation, but in the context of Member-State budgetary transparency in the Economic
and Monetary Union. He draws on international relations perspectives to examine the
challenges posed in monitoring compliance with Member State transparency obligations,
observing that the success of such monitors depends on their ability to create a compliance
information system, ie those rules, actors and processes that collect, analyse and disseminate
information on violation and compliance. In particular, the effectiveness of such a system
depends on its capacity to monitor and overcome the twin challenges to budgetary
transparency of disclosure (when political actors fail to provide credible budgetary data
to the monitors) and interpretation (when governments wrongly categorise, intentionally
or otherwise, their data according to existing accounting rules). Savages contribution is
a valuable reminder that attempts to evade transparency obligations can be found in the
behaviour of states in supranational contexts and are not confined to bureaucratic practices
within executive government at the national level. David Stasavage looks at a different facet
of transparency within the European Union, testing the predictions of principal-agent theory
concerning the effects of transparency on collective decision-making against the experience
of 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 are
more likely to produce frank exchange of views and free deliberation about policies when
compared to more public venues. He argues that the experience of the Council of Ministers
bears out these predictions. While secrecy of decision-making proceedings has led to a
serious problem of accountability, allowing Member State representatives to say one thing
in 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 transparency
and open government arising in the age of information technology, looking at two quite
specific 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 argues
that computer code controls and enables the actions of users, thus, for users to have true
autonomy, they must be able to examine, alter and redistribute the code. The issue she
seeks to explore is the extent to which this observation applies to governmental activities
that are embedded in computer code. By analysing the differences and implications of
open and closed software code, she argues that the issues are much more complex than
the simple notion that open code is good and closed code is not when considering their
implications for effective democratic governance. Helen Margetts considers the ways in
which 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. The
high level of specificity of these two papers merely scratches the surface of the relationship
between information technology and transparency, for the advent of technology not only
provides potential opportunities for upwards transparency, enabling citizens to obtain
access to government information, but it also vastly enhances the potential for downwards
transparency, owing to the states technologically-enhanced capacities to glean and gather a
wealth of information about its citizens.
Christopher Hood concludes the volume by gathering together some of the principal
threads emerging from the collection, while adding observations of his own. He argues that
they collectively indicate that there has been a growth in transparency laws, routines and
procedures, including access to government laws, audit and record-keeping requirements,
but notes that several essays doubt whether these have generated greater levels of substantive
openness in government. Although one of Hoods aims was to account for the rising
prominence of transparency as a nostrum of good governance, none of the volumes
contributors were primarily concerned with providing such explanations. Hood nevertheless
identifies three possibilities, drawing on interest group accounts, cultural explanations and
functional accounts. Rather, most of the contributions focus on what transparency
affectswhat impact the rise of transparency has had on the policies and practices of those
subject 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 implementation
of transparency laws is conventionally accompanied by claims that it will enhance public
trust and create a new culture of openness in government, Hood observes that this claim is
unproven, and probably not provable. Indeed, a number of the contributions suggest that
such measures may be futile, jeopardise other values, or even be perverse, reducing rather
than enhancing citizens knowledge of government and its workings. Finally, he reflects on
whether we should value transparency, observing that Birkinshaw is alone in according it
the status of a human right, yet he also suggests that most would share Rousseaus view
that 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 exactly
what are the trade-offs between transparency and other values, or qualities that distinguish
it from its more negative forms. He identifies three main values against which transparency
must be traded off arising from the essays: appropriateness of judgments or treatments about
specific cases in conditions of risk or uncertainty (for example, a surgeon who declines risky
cases if surgeons mortality records are published); the ability to conduct mutually beneficial
negotiations effectively without deadlock; and system maintenance in political science in
conditions when no ambiguity about goals or about who benefits and who pays for what
can 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 determines
the social effects of formal transparency measures, especially in conditions where the values
inherent in transparency measures have not pervaded the institutions that have such measures
applied to them. Several of the essays also see blame-conscious cultures as especially likely to
turn transparency measures into standard operating routines that in practice violate the lofty
ideals of transparency theorists, particularly the tendency for (i) box ticking routines that
create frustration and alienation, or (ii) blame avoidance concerns dominating institutional
responses that can produce paradoxical and dysfunctional or tokenistic responses by leaving
audit trails, but fail to fix the substantive problem or the avoidance of record keeping to
ensure collective amnesia.
For public lawyers, this volume is of considerable value in breathing life into a principle
which they generally accord uncritical allegiance and which many narrowly equate with
access to government information regimes. It offers several important lessons. First, it clearly
Book Reviews 199

demonstrates that the principle of transparency is invoked in a broad and diverse range of
contemporary governance contexts well beyond the confines of freedom of information
legislation. Secondly, its implementation in practice is anything but straightforward, with
a number of contributions revealing how institutional action may serve to side-step, avoid
and even overwhelm the intentions underpinning transparency measures. As Hood observes
in his conclusion, prudence seems to justify a strong element of practical scepticism about
the way transparency measures work on the ground. Thirdly, the esteem with which public
lawyers 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, several
of the contributions indicate that while sunlight may be the best disinfectant, excessive rays
can cause harm. Contrary to Benthams well-known adage, sometimes the more strictly
we are watched, the worse we are likely to behave. Evidence from economics and game
theory suggests that transparency might in some circumstances undermine good decisionmaking. 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 give
reasons, or for judicial willingness to accede to claims for confidentiality in aid of the public
interest.
By drawing attention to the ways in which transparency might be counter-productive
in certain circumstances, several contributors grapple directly with the ways in which
transparency may conflict with other valuable goods, including good faith and freedom in
negotiations, 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 into
conflict with transparencys demands. Given that there has been a significant growth in
rights consciousness in contemporary culture (including growing recognition of a right to
privacy) that has broadly coincided with the rise and rise of transparency which the
volume emphasises, this is a significant gap. Perhaps this is attributable to the fact that
a preponderance of the contributions adopt perspectives from various standpoints within
political studies, with only one legal scholar contributing. Christopher Hood himself notes
in his concluding comments that few of the essays have considered the ability of citizens
to know about each others identity. In this respect, there is considerable scope for legal
scholars to enrich discussions within political studies, just as this volume illuminates how
legal scholars might learn much from their colleagues in political studies and related social
scientific disciplines. Accordingly, although the volume largely succeeds in achieving its
stated aim of collecting and comparing ideas about transparency across different academic
disciplines, the contributions do not generate much in the way of a substantive dialogue
between disciplinary perspectives. This is not so much a fault on behalf of the editors
or contributors, but serves to highlight the challenges of weaving together insights from
different disciplines that can successfully provide an integrated interdisciplinary perspective.
Karen Yeung*
New Dimensions in Privacy LawInternational and Comparative

Perspectives. Edited by Andrew T. Kenyon and Megan Richardson. Cambridge
University Press, Cambridge, 2006. 269 pp + Bibliography + Indices. Hb. 60.00.
This edited collection of essays on developments in the protection of privacy interests at the
levels of national and international law is the product of a series of public seminars hosted by
the Centre for Media and Communications Law at the University of Melbourne. A number
of jurisdictions are represented by the contributors to this volume, including England,
the United States, Australia, and New Zealand. The discussion also ranges across the
supranational forms of privacy protection to be found under the European Convention on
Human Rights, EU data protection and privacy and electronic communications directives,
as well as the Privacy Framework agreed by countries belonging to APEC (Asia-Pacific
Economic Co-operation). There is a preponderance of essays devoted to developments
in common law jurisdictions. Of the nine substantive chapters, three (those contributed
* Kings College, London.
200
Public Law
by Professors Barendt, Phillipson and Wacks) focus to a large degree on developments in

English 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 and
privacy should not be conceived of as necessarily or invariably set in an antagonistic
relationship. We need a guarantee of a measure of privacy in our communications with
friends, 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 they
resist actions to disclose the identity of their sources. There are strong reasons connected to
informed self-governance which underpin this stance.
Professor Murchison takes as his focus the extent of protection offered by the US tort of
public disclosure of private facts, noting the historical weakness of the tort when pitched
against the First Amendment and freedom of the press. As he notes, public disclosure
actions have tended to fail in the past when the plaintiff has been unable to demonstrate
that disclosure lacked any relevance to matters of public concern.5 Murchison argues that a
revision of judicial attitudes may however be in progress, citing the Supreme Court decision
in Bartnicki v Vopper.6 The ruling concerned the broadcast on public radio in Pennsylvania
of a private mobile phone conversation between the chief union negotiator and a teachers
union president which occurred during contentious collective bargaining discussions. In
the conversation it is suggested that the union should consider blow[ing] off . . . front
porches and do[ing] some work on some of these guys. The conversation had been
intercepted by a third party and a taped copy supplied to a radio journalist, Vopper, who
aired the tape on his programme. The issue for the Supreme Court was whether union
officials were able to recover damages under federal and state laws protecting the privacy of
electronic communications. In a 6:3 ruling, the Court found that the statutory protection
violated the journalists First Amendment right to disseminate information on matters that
are relevant to informed self-government. In giving his majority opinion, Justice Stevens did
however allude to the fact that private communications could enjoy a measure of privacy
protection without falling foul of the First Amendment. However, on the facts before the
Court, the public interest in learning of the details of the conversation was a weighty one
and prevailed over this privacy interest. For his part, Murchison hails Bartnicki for its refusal
to accord a presumptive privilege for media disclosure of private conversations and would
doubtless welcome further inroads into the medias First Amendment dissemination rights.
Nonetheless, it is possible to read too much privacy protection into the majoritys ruling. It
is not clear postBartnicki under which precise circumstances involving public figures in the
future (or even private persons who are thrust into the public domain) a media organisation
might 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 possibility
of using violence against their opponents, it must still be doubted whether the Court would
have altered its stance to favour the petitioners claim. The First Amendments commitment
to informed self-government and a correspondingly broad conception of the public interest
make it unlikely that the medias free speech claims would yield to privacy concerns so
readily, even where this does concededly result in some unknowable quantity of private
speech being chilled.
Across the Atlanticand in the absence of a similarly robust degree of constitutional
protection for media expressionindividuals seeking to prevent the disclosure of private
information are generally on firmer legal ground. This enhanced level of privacy protection
is welcomed by a number of contributors to this collection. It will be recalled that Campbell
v MGN confirmed the seismic shift in this area by finally putting to rest the requirement
from 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 information
could reasonably be expected to know that the information was confidential or obviously
private. Where this requirement is met (and it may not be entirely clear what does count
as private information), the privacy claim is then to be balanced against the claim to
freedom of expression. Neither claim is to enjoy a presumptive priority over the other.
5
6
See, e.g. Gilbert v Medical Economics Co 665 F. 2d 3905 (10th Cir. 1981).
532 U.S. 514 (2001).
Book Reviews 201

Instead, the particulars of each claim must be closely considered. Thus, the weakness of the
substance 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 emerge
triumphant. Of course, balancing the particular features in any given case in turn gives
rise to a host of new thorny issues. There is a good level of analysis of these developments
across several chapters in the book and some of the problematic issues they provoke.
Nonetheless, the book lacks a counterweight chapter or two that addresses systematically
and in principled terms from a media freedom perspective the problematic features of cases
such as Douglas v Hello, Campbell and Von Hannoverone that takes in the unedifying
commodification of privacy in Douglas and considers the overarching constitutional
difficulties for liberal democracies posed by a form of judicial activism that sets out what
is and is not acceptable journalism, drawing in the process upon some very open-ended
notions of autonomy and dignity. Kenneth Keiths chapter, for example, (Privacy and the
Constitution) fails to addressother than in passingthe legitimacy of judicial creativity
in this area. Raymond Wacks, in a chapter that reminds us why the English judges have
been unwilling to create a fully fledged privacy tort, manages merely to devote two
paragraphs 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 reach
of normal political machinations. From a public law perspective, the absence of a serious
and sustained examination of the democratic legitimacy of judicially-extended privacy torts
is disappointing.
The normative preference for greater privacy protection that is apparent in parts of
this collection is also manifested in places by an uneven analysis of the substance of
expression/privacy claims. Specifically, whilst the paucity of certain freedom of expression
arguments sometimes made by the media are rightly exposed (a number of authors agree
that expression claims need to be analysed within a tiered approach to speech types in
which 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 privacy
claims. Take the category of medical information, for example. It is one thing to confer
a high degree of protection upon particularly intimate medical information (such as that
relating to mental health or sexual matters), it would seem quite another to attach the same
importance or weighting to less obviously intimate medical details such as the fact that the
claimant has a cold or has had an operation to remove an in-growing toenail. A similar
range of more-to-less obviously weighty private financial information can also be envisaged.
It is one thing to reveal the claimants salary and bonus details, quite another to state that
last week the claimant spent 10 on a bottle of wine in his local supermarket. It is not
immediately obvious that each privacy infringement should be accorded an equal weight
in any balancing exercise. Furthermore, it must be doubted whether private information that
actually shows the claimant in a favourable light (such as taking sensible measures to address
a personal difficulty as per Naomi Campbell) ought to be considered as having the same
weight as a much less favourable revelation in any balancing exercise. These complexities
would have been worthy of closer analysis
The majority in Campbell were, with the benefit of hindsight, too ready to dictate to the
newspaper the form and content of the journalistic package to be presented to newspaper
readers. As Lord Nicholls for the minority pointed out, once it was conceded that Ms
Campbells lies had put the issue of her drug addiction and treatment squarely into the
public domain, to tell the media that it could not report her attendance at a meeting of
Narcotics Anonymous was decidedly odd. It was equivalent to preventing the media from
revealing the fact that a person whom the public already knew had broken his leg, had
had the affected limb put in plaster. The unremarkable and inconsequential nature of
the additional information did not seem to engage Art.8 anew. Thus, for Lord Nicholls
this extra information did not overcome the first hurdle of constituting obviously private
information. The case for permitting disclosure of the details of Campbells treatment could
independently be said to be strengthened by the legitimate interest of the newspaper in
placing a credible story before its readers. The more the published account was able to
affirm hard details of the treatment, the greater its credibility. This lack of latitude afforded
to the Mirror on the matter of how it was to put its readers straight about Ms Campbells
lies is arguably one of the most disquieting features of the majoritys reasoning. To these
troublesome features of domestic developments we must also add the spectre of the European
Court of Human Rights ruling in Von Hannover. The simplistic dichotomy advanced by
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Public Law
the Strasbourg Court between public and private figures denies the possibility of there
being a legitimate reason for the public to learn details pertaining to someone who is not
performing a public function. This failure to appreciate that the lives of private figures
can become of genuine interest to the public (as when the facts about such persons reveal
something about the working of public institutions/officials and thereby add something to
informed scrutiny and accountability) is rightly criticised by Phillipson.
Other chapters concern themselves with the potential for abuse of privacy interests in
the commercial sphere. Graham Greenleafs chapter on the APEC Privacy Framework,
for example, takes as its focus the international agreement which spans four continents
and one-third of the worlds population. He fears that the low and incomplete standards
contained in the Privacy Framework may come to be accepted a ceiling rather than a
base of privacy protection that compares unfavourably with EU standards and may have
ramifications for the sharing of personal data across frontiers.
David Lindsay and Sam Ricketsons chapter on copyright infringement in digital media
analyses the impact of digital rights management (DRM) technologies that allow copyright
owners to lock-up copyright materials and the threat that such technologies may pose to
the privacy of users. DRM appears to facilitate the identification of end users of copyrighted
material, and can allow the gathering of data about the users identity and access to such
material. The analysis here is partly historical, looking at the how civil and common law
systems have traditionally protected privacy interests and how each is adapting to the era
of digital rights management. The authors contrast rights-based and utilitarian interestsbased approaches to the regulation of copyright and privacy. In the former, legal rules
would protect the autonomy and dignity of both the creators of copyright materials and
also users by imposing limits on the market. Under a utilitarian or interests-based approach
the legitimacy of legal intervention is assessed according to whether the intervention will
promote a more efficient market in copyright material. At present the authors conclude that
it 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 to
be a valuable resource. Notwithstanding earlier criticisms concerning a lack of balance, the
editors have put together an interesting and thought-provoking set of essays by some of
the leading authorities in privacy law in both its public and private law dimensions across a
number of jurisdictions.
Ian Cram*
* University of Leeds.

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PL Spring-08:v

The ombudsman and paths to justice: a just alternative or just

The consistency of Dicey: a reply to McLean and Macmillan

The Privy Council overrules itselfagain!

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

Christopher Hood and David Heald: TransparencyThe Key to Better

Andrew T. Kenyon and Megan Richardson: New Dimensions in Privacy

The Pervasiveness of Polycentricity

Constitutionalism and Legislation in Special Educational Needs

Notes for Contributors

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Professor of Law in the University of Oxford and

Of the Inner Temple, Professor of Law,

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Professor of Constitutional Law,

Professor of Public Administration, Royal Holloway,

Professor of Public Law,

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Copyright in all pieces accepted for publication remains with the

Of the Middle Temple, Professor of Public Law,

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The ombudsman and paths to justice: a just alternative

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

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

In others, it is non-pecuniary: a trust-wide audit of clinical records and

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

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

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

have resorted to it.9 In practice, that proviso creates a necessary measure

merely incidental or ancillary to the provision of accommodation

of a nature which an authority whose primary responsibility is to

Parliamentary Commissioner Act 1967 s.5(2).

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

relation to patients eligibility for continuing care funding.12 I concluded that,

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

goes with it (red tape, compensation culture, political correctness gone

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

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

See Tribunals, Courts and Enforcement Act 2007.

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

Against a written constitution

Lord Hailsham, The Dilemma of Democracy (London: Collins, 1978), pp.139140.

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

been made for the possible virtues of a written constitution. Perhaps we