Wikipedia on the British constitution

UKCLAlogoAs everybody reading this blog will know, Wikipedia is an online, multilingual, free encyclopaedia compiled using Wiki software. What may be less widely known is the process by which articles on Wikipedia are developed. Anybody with access to the Internet and some basic computer skills can create new articles and edit existing ones. Expert knowledge of the topic in hand is not required: this is not a place for dissemination of original research; instead, contributors are expected to cite secondary sources and adopt a neutral point of view (“NPV”). Errors – some made maliciously, others in good faith – abound. The great majority of contributors use noms de plume or lurk behind the anonymity of IP addresses.  It is, however, among the 100 most popular websites in the world. Thanks to Google, it is often the first port of call for people trying to find out about a subject.

The Wikipedia phenomenon has itself become a subject of academic study from a variety of disciplines. Research questions have included whether it is based on “wisdom of crowds” effects (huge numbers of people making large numbers of edits) or driven by “elite” users? How do editors coordinate their contributions? How are rules and procedures created and implemented within the editor community? Why do people spend time editing it?

I want to consider the Wikipedia article “Constitution of the United Kingdom” (to which synonyms such as “British constitution” are directed). This is worth doing for several different reasons. It is probably among the most read pieces of writing on the subject: what we know for sure is that it has been viewed 69220 times in the last 90 days. So far as I can tell, it has been written by amateurs rather than people with a professional or academic interest in the subject matter: as such, it provides a snapshot of a collective effort to capture what is regarded as important about the constitution. I want also to suggest that the quality of the article raises questions about the role of academics and other experts in promoting public understanding of the constitution.

The article’s history and contributors

The first version of the article was started in February 2003, two years after the launch of Wikipedia. During the ensuing 10 years, 564 distinct contributors have developed the article. It was set in motion by an editor known as “Jtdirl”, who describes himself as an Irish “cultural creative” and “postmodern idealist” who subscribes to the view that “This user does not believe Wikipedia takes the expertise and knowledge of academic contributors seriously enough”; but by October 2005, Jtdirl seems to have stopped editing the article, leaving it to others to carry on the work.

Another early editor of the article was “Deus Ex”, who seems to have stopped editing in 2005, explaining “I will not be active in Wikipedia editing for the foreseeable future. I cannot justify spending significant amounts of time on Wikipedia. I am also beginning to become frustrated by the lack of direction and progress – to become a truly reliable encyclopaedia, Wikipedia must have stable versions of important articles verified by qualified experts. … the problem with Wikipedia-in the current set up, it is simply not reliable enough to be considered an encyclopaedia”.

By far the most prolific contributor is “Grover Cleveland”, who to date has made 91 changes to the article. He contributes across a range of subject matter, including US politics and classical music. In all, ten contributors made ten or more “edits”; two appear to be lawyers though not specialists in public law. Several hundred more have made a small number of (often very minor) changes to the article.

Conclusion: the article is the work of non-experts.

Assessing the quality of the article

Wikipedia users are invited to rate articles using a widget at the end of the article. The “Constitution of the United Kingdom” receives relatively high scores as “trustworthy”, “objective”, “complete” and “well-written”. This is a generous assessment.

Any more detailed assessment has to recognise that the article is part of a cascade of linked articles. For example, devolution gets relatively light coverage in the article but there is a separate one on that subject. The article is, in places, historical in its approach though it fails to present a clear chronology of the development of the constitution.

It contains a number of erroneous statements or assertions that are misleading without qualification or further explanation: “Parliament has the power to determine the length of its term.” “By the Constitutional Reform Act 2005 [Parliament] has the power to remove individual judges from office for misconduct”. (Yes, but rather misleading). “However, as part of Parliamentary Sovereignty, Parliament could create new prerogatives if it so wished regardless”. “The Prime Minister is normally a member of the House of Commons.”

The balance of coverage in the article is lop-sided. There is discussion (twice) about the Church of England but the ECHR and Human Rights Act 1998 is relegated to a passing reference in a paragraph towards the end under the heading “Other constitutional reforms”.

The article would not pass a peer review process for an academic journal and nor would it receive a good mark as an undergraduate essay (though I suspect it has been cut and pasted into some over the years). But those, of course, are not fair points of comparison.

Conclusion: the article, like many of those linked to it, could be much better than it currently is.

Promoting public understanding of the UK constitution

Academics and other experts from time to time attempt to promote public understanding of the British constitution. This can be done through books (there are some valuable contributions in the New Oxford Companion to Law (OUP 2008), edited by Peter Cane and Joanne Conaghan; and Hilaire Barnett’s Britain Unwrapped: Government and Constitution Explained (Penguin 2002) would be another example). The cost and lack of immediate access to books, however, put them at a disadvantage in the digital age.

Another avenue is that taken by The Constitution Society, whose website (see here) is its main educational resource: it contains some imaginative and well-designed ways of communicating facts and ideas about the constitution.

What I want to suggest is complementary to these attempts to promote public understanding: that people with expertise on aspects of the British constitution contribute to articles on Wikipedia. A coalition of the willing could, relatively easily, improve and develop the amateur efforts of the past 10 years.

Who will join me? I’ve made a few forays in Wikipedia (always using my real name). I’ve improved Stanley de Smith’s biography. In 2011, I rewrote and expanded the article on “Law of Jersey” and related articles. I made early contributions to the article “Supreme Court of the United Kingdom”. Wikipedia is not a place for preciousness: one’s carefully crafted sentences can be hijacked modified by unknown contributors; irrelevances (to my mind) introduced; some dubious assertions tacked on. But if one accepts that writing for Wikipedia is more like standing on a soapbox addressing a crowd than a contribution to a highly refined academic debate, it’s possible to make it a better read. And that’s the point: people, in their tens of thousands, do read Wikipedia. If those of us with expertise want to reach them, then let’s roll up our sleeves and get stuck in to editing.

This first appeared as: A. Le Sueur ‘Wikipedia on the British constitution’ UK Const. L. Blog (27th January 2013) (available at http://ukconstitutionallaw.org)

Have you heard the one about Jimmy Carr, ‘The Guardian’ and a small British island?

UKCLAlogoThere aren’t many good jokes about constitutions. In fact, I’m not sure there are any jokes about constitutions. Be that as it may, British comedian Jimmy Carr has sparked a debate about the constitutional future of a small British island off the coast of France. Carr isn’t my cup of tea. I sat next to him on a flight to Jersey once; we didn’t talk and I find his humour too close to the snide and oily end of the comedy spectrum. But clearly my view’s not widely shared as he’s made lots of money and put some of into a tax avoidance scheme in Jersey. The prime minister said it was immoral, Jimmy’s been contrite, and Guardian readers are being asked in an online poll ‘Should Jersey have constitutional independence from the UK?’ At the time of writing (the poll is still open) 62.3 per cent of respondents say ‘yes’. Judging by readers’ comments, most would add ‘… and good riddance’.

What’s puzzling is that while independence talk is fast and frequent in the north of the Kingdom, in the southernmost part of the ‘British Islands’ (a legal term of art: see the Interpretation Act 1978, schedule 1) it’s sporadic and peripheral.

There aren’t many buses serving the rural parish in Jersey where my family has lived in since the 14th century, but I suspect a straw poll on the No.4 would reveal four reactions and an overall picture completely at odds with the Guardian poll.

(1) Don’t be silly! How can a 46 square mile island with a population of 100,000 become a sovereign state? That would be like ‘Passport to Pimlico’.

(2) No independence please, we’re British! There’s no doubt that Jersey is British, even if names of people and places are often in French (and these days, Portuguese and Polish). Some people fear that independence would undermine cultural, family and economic ties with the UK.

(3) That would be bad for business! Jersey’s economy is dominated by the finance sector. There are frequent skirmishes – OECD initiatives on harmful tax competition, EU pressures on ‘zero-ten’ tax policy, VAT low value consignment relief, Jimmy Carr. It is an industry that sells, among other things, the allure of constitutional stability and talk of change risks deterring customers.

(4) We don’t trust Jersey politicians and ‘the Establishment’! Some people argue that independence would remove the safety net of UK government’s longstop ‘good governance’ oversight of the island’s internal affairs.

It wouldn’t surprise me if nobody on the bus were in favour of independence. But times change and constitutional ideas that in one era are marginal can gain traction.

A Crown dependency

What is the current position? Jersey, along with the entirely separate island jurisdictions of Guernsey and the Isle of Man, are constitutionally speaking ‘Crown dependencies’. They enjoy (and have done for centuries) something along the lines of ‘devo max’ proposed for Scotland: the islands have full fiscal autonomy and are for almost all purposes internally self-governing. They have never been part of the UK. The Queen formally makes some senior appointments and the Crown is represented by a Lieutenant Governor, which many people think lends an air of dignity and ceremony to island life. From the island’s point of view, another benefit of the current set-up is that there is no need for any defence provision, diplomats, or other apparatus of statehood.

The Crown dependency relationship is not set in aspic. In recent years, the islands have collectively and individually asserted greater autonomy. In an interconnected world, the previous internal (leave it to the islands)/external (leave it to the UK) dichotomy doesn’t work as well as it did.

The islands were given a place at the table of the British-Irish Council (without much consultation I suspect) in 1999. The preamble to the States of Jersey Law 2005 captures the direction of travel as it recites ‘WHEREAS it is recognized that Jersey has autonomous capacity in domestic affairs; AND WHEREAS it is further recognized that there is an increasing need for Jersey to participate in matters of international affairs …’.  In 2007, the Jersey and the UK governments agreed a concordat (Framework for developing the international identity of Jersey). Jersey has been allowed sufficient international legal personality to sign international agreements with other countries (on double taxation and tax information exchanges). In 2010, the all-party UK House of Commons Justice Committee in their inquiry into Crown dependencies was supportive of greater autonomy and critical of meddling by the UK Ministry of Justice. Jersey and Guernsey have opened a representative office in Brussels and another is planned for London.

Against this background – which many in the island would see as the best of both worlds – there has been little appetite for independence. A few years ago, advised on constitutional issues by Sir Jeffrey Jowell QC, the Jersey government carried out a feasibility study about what independence would entail and how much it would cost, but this was presented as prudent contingency planning.

Sir Philip Bailhache (Jersey’s former Bailiff who stepped down from judicial office to stand in the 2011 election election, and who is now ‘foreign minister’) has shown tenacity in putting the idea of independence on the agenda of elite circles of lawyers and financiers – who listen politely but whom I sense are unconvinced of either the desirability or practicality of independence. Notwithstanding Guardian headlines, he says that he not advocating independence but rather calling for the continued evolution of Jersey’s relationship with the UK Government.

Constitutional politics of independence

It is difficult to know what ordinary people in Jersey think. Certainly, there is no grass roots independence movement. The politics of independence are strange. Unlike Scotland and Wales, nobody with left or green leanings in Jersey seems to have spotted the opportunities that severing the apron strings from London civil servants and UK ministers would bring. Most members of Jersey’s disorganised centre-right government in the party-less States, would probably rather the ‘I word’ was not used in public. Instead, the talk is of developing an international personality (described above) and standing up to the UK (whatever that means). Despite difficult economic times, the finance industry is doing well in Jersey at the moment (in 2011 there was a reported upturn in profits of just under £1.1 billion). With both the progressives and the pro-finance industry establishment politicians against independence, it’s unlikely we’ll ever find out what people on the No.4 to Trinity think.

The direction of travel

Evolution rather than revolution therefore seems to be the most likely course. I have two suggestions for further change to core aspects of constitution – the legislative process and arrangements for appointing judges – that are likely to irk both progressive and establishment thinking in Jersey (so they must be about right).

First: the grant of royal assent to legislation passed by the assembly of the States of Jersey should be patriated to the island. Currently, Laws are subject to a vetting process by a team (in these straitened times, probably of one) in the Ministry of Justice before being cleared for royal assent through the Privy Council. In its 2010 inquiry, the UK House of Commons Justice Committee was satisfied that the Law Officers’ Department in Jersey was more than capable of carrying out human rights audits of proposed new laws. Although I gather there’s subsequently been some streamline of processes in London, a more radical solution is needed: get rid of the London add-on to Jersey’s legislative process. The price to be paid for this, however, is that Jersey’s elected representatives would need to up their game and take an interest in ensuring that they are satisfied with ministers’ and law officers’ assurances on human rights compatibility are credible. Former Deputy Bob Hill failed in his attempts to involve Jersey’s parliamentarians in reviewing legislation through an official human rights scrutiny committee. This would need to be revisited.

Second: responsibility for appointing judges and the law officers of the Crown should be patriated. The UK Ministy of Justice currently has the final say on appointments of the most senior judiciary, and on their removal (the Home Secretary, the minister then responsible for Crown dependencies, removed Deputy Bailiff Vernon Tomes from office in 1992). What Jersey should have, in my view, is an independent judicial appointments commission (consisting of locals and expert outsiders) responsible for all judicial appointments. As well as signifying the autonomy of the island’s legal system, a judicial appointments commission would solve two problems. It is wrong as a matter of constitutional principle for one judge to appoint another: I would therefore remove the Bailiff’s power to appoint magistrates. On constitutional principle, I am also against judicial selection by election: jurats (the senior lay judges of fact in the Royal Court) are chosen by an electoral college of politicians and the legal profession in secret ballot.

À la préchaine.

Andrew Le Sueur is co-convenor of the UK Constitutional Law Group.

On queuing and queue jumping

UKCLAlogoAlong with moaning about the weather, queuing is generally regarded as part and parcel of life in Britain. Next month’s Olympics look set to provide ample opportunities for both in London. At least there are now fewer bendy buses: my experience of the No 25 was that their multiple exists/entrances caused a breakdown of social conventions about whose turn it was to get on first, even among those of us who believe that queuing is fair.

Queuing is a fact of life in various public law settings. Queues can be a highly potent element in public and political accountability systems, performing roles as triggers and yardsticks. Recently, unacceptable waiting times at the UK Border control points at Heathrow led to questions in Parliament, extensive discussion in the news mediatweets from Joan Collins to the Home Secretary, and hopefully some action in the beleaguered Border Agency. Queuing also provides an accountability measure for access to NHS accident and emergency treatment: a couple of weeks ago, the King’s Fund reported a 26 per cent increase in the number of patients – that’s over 250,000 –waiting more than four hours in A&E (though the good news was that the NHS met its target to discharge 95 per cent of patients within four hours).

Queuing can also be valuable in other ways. I have heard it said that a benefit of the antiquated division system in the UK Parliament (where MPs and peers vote by leaving the chamber and queue to move through the “ayes” and “noes” lobbies) is preferable to electronic voting at seats because it provides opportunities for legislators to have quick words with each other, helpful in the day-to-day conduct of political business.

The question that is troubling me is: in what circumstances is it acceptable for someone to jump a queue in a public law context?  I have in mind situations where a public authority has an effective monopoly on the provision of a service or the right to regulate. Border control, issuing passports, and the determination of planning permission are examples. (In Britain, there are many situations where a relatively wealthy and well-informed person may choose to avoid a queue by seeking an alternative to government service provision in the market place – for instance, private health care instead of the NHS or arbitration instead of the courts ­– but that is a rather different situation to the one I have in mind).

As with so much in life, money (for those who have it) provides one set of possible options for queue mitigation.

A person queuing could try to flash the cash: to pay a public official to be allowed to move forward, out of one’s normal turn. In some jurisdictions, a payment to officials to have a decision made, or one’s case move forward in a court docket, is unexceptional. By most international comparisons, payments of this sort are thankfully uncommon in Britain. A tactic of offering a public law decision-maker a wodge of £20 notes in a brown envelop or an invitation to an exclusive golf-club followed by a slap-up lunch and a trip to a lap dancing club, if detected, will bring the Bribery Act 2010 into play, with criminal consequences. So, to state the obvious, corrupt practices are not acceptable ways of jumping a queue.

Payments to avoid or reduce queuing time in some situations are, however, lawful. Well-heeled travellers with business or first class tickets are welcomed at a “fast track” queue for UK Border control at several major British airports. The even-better-heeled may shell out for a “concierge service”, with an escort from the plane to a private and presumably very queue-less lounge for processing by a UK Border officer. These practices feel wrong to me (and I say that as a frequent flyer who sometimes pays over the odds to turn left when I get on a plane). Even if I were sure that airlines and concierge services paid a handsome fee to the UK Border Agency to recoup the costs of officials, plus more, it would still feel wrong.

In chapter 1 of his new bookThe Moral Limits of Markets: What Money Can’t Buy (which I’m currently reading), Michael Sandel seems to strike a phlegmatic tone. The demise of the queue for those who are willing and able to pay, he writes, “at airports and amusements parks, at Shakespeare festivals and congressional hearings, in call centers and doctors’ offices, on freeways and in national parks – are recent developments, scarcely imaginable three decades ago. The demise of the queue in these domains may seem a quaint concern”.

As public lawyers, I think we should apply particular kinds of distinctions to queues, and take a principled approach to when queue jumping can and cannot legitimately take place. To my mind, buying a right to speedier decision-making by officers of the state at the UK Border at an airport is not the same as buying aFastrack ticket for Alton Towers. Two features of the border control scenario should make us reluctant to allow preferential treatment to be bought and sold. One is that border control is a core activity of the state. The second is that it entangles (and I put it no higher than that) human rights: the corralling of passengers is a denial of liberty for governmental purposes, even if it does not register on the ECHR article 5 Richter scale; and the right to return to one’s country is also, for many passengers, in issue. The first come, first served fairness principle that underpins queuing ought to be main consideration, though other factors such as the desirability of showing special concern for frail, elderly or disabled people might also be included in a new one-size-fits-all egalitarian regime. So I’ve come to the conclusion that supermodels, sports stars, pop singers I haven’t heard of and some I have, captains of industry and the odd university vice-chancellor should queue shoulder to shoulder with everyone else. Speedier and more private decisions should not be bought and sold by the state.

This approach – of deprecating paid-for queue jumping for core state activities affecting human rights and fundamental freedoms – is not confined to the UK Border control. I’d argue that the three-tier passport renewal service (standard £77, fast track £112 and premium £129) also falls foul of the rule I’m advocating. With their newfound freedoms under the Localism Act 2011, it should not surprise us if paid-for queue jumping crops up in an increasingly wide range of situations in regulation and service provision by local authorities; and the need for other cash-strapped public authorities to “do more, with less” will see the phenomenon of paid-for queue jumping mushroom. What next: VIP lanes in polling stations on election days?

As the Prime Minister tells us, there are some situations in which “we are all in this together”.

This also appears on the UK Constitutional Law Blog.

‘Fun-loving guys’, government ‘doing anything that individuals do’ and the rule of law

UKCLAlogoIn my administrative law lectures, I get students to practise an action that I explain ought to become instinctive in the minds of lawyers working for (or against) government. You extend your index finger and, in a sweeping movement, point to a law in the book in front of you, or on the library shelf, or on Westlaw, or wherever. As Mr Justice Laws said in Fewings, ‘For private persons, the rule is that you may do anything you choose which the law does not prohibit … But for public bodies the rule is opposite, and of another character altogether. It is that any action to be taken must be justified by positive law’.

Pointing at positive legal authorisation for an act of government is not always straightforward – and that is half the fun and challenge in studying administrative law. The ‘positive law’ may be implied; it may be unclear. The issue in Fewings was whether Somerset County Council could lawfully ban hunting on its own land (a decade before the Hunting Act 2004 put in place a national ban on hunting with dogs). There was some awkward scrabbling around for any statutory basis for local authority management of open spaces but the parties alighted on (and the judges agreed) that s 120(1)(b) of the Local Government Act 1972 was a good enough foundation, even though it was ostensibly about the acquisition rather than the on-going management of land for ‘the benefit, improvement or development of their area’. Laws J and the majority of the Court of Appeal held, for somewhat different reasons, that s 120(1)(b) did not enable a hunting ban on council-owned land. The council had mistakenly assumed it could act like a private landowner and had not applied its collective mind to the purposes or limits of the power conferred on it by s 120. The judgments were regarded as undemocratic by some.

Another complication in the finger pointing approach is s 111 of the Local Government Act, which gives local authorities ‘subsidiary powers’ to do anything ‘which is calculated to facilitate, or is or conducive or incidental to, the discharge of any of their functions’. This wriggle-room can’t be taken too far into things that are ‘incidental to the incidental’. If we had time in my lectures, we could go into the ‘wellbeing powers’ created by s 2 of the Local Government Act 2000 and the twists and turns that ensued from that.

My finger-pointing exercise will need a radical re-think for the 2012-13 academic year. Section 1 of the Localism Act 2011 came into force in February, several weeks earlier than anticipated as a government response to the High Court’s ruling that Bideford Town Council had no powers to allow Christian prayers to be said at the start of council meetings. Mr Justice Ouseley held ‘There is no specific statutory power to say prayers or to have any period of quiet reflection as part of the business of the Council’.

The situation is now different under s 1(1) of the 2011 Act, which says ‘A local authority has power to do anything that individuals generally may do’. This includes ‘power to do it anywhere in the United Kingdom or elsewhere’, ‘power to do it for a commercial purpose or otherwise for a charge, or without a charge’ and ‘power to do it for, or otherwise than for, the benefit of the authority, its area or persons resident or present in its area’ (s 1(4)). This general power ‘is not limited by the existence of any other power of the local authority which (to any extent) overlaps with the general power’ (s 1(5)).

At second reading of the bill that became the 2011 Act, Eric Pickles MP (Con), Secretary of State for Communities and Local Government, said:

‘The reason why the general power of competence is so important is that it turns the determination requirements on their head. All those fun-loving guys who are involved in offering legal advice to local authorities, who are basically conservative, will now have to err on the side of permissiveness. That is a substantial change …’.

The government believes that the formula used is judge-proof. Junior minister Andrew Stunell MP (Lib Dem) assured colleagues on the public bill committee‘just how broad that power is’ and, thanks to subsections (5) and (6), the ‘courts will find it difficult – we have been advised that they will find it impossible – to unpick that’. Later he said, clarifying the intended reach of the new general power:

‘In the past, local authorities could only do things that were permitted to them by legislation. We are now inverting that and saying, “You can do anything that isn’t forbidden by legislation.” That does not mean that we are taking away the current forbidden territory and saying to authorities that they can go into the forbidden territory. It is not saying that they can abandon their statutory and legal duties that are imposed by existing legislation.’

The idea of a power of general competence (PGC) for local authorities is neither peculiarly English nor is it new.

For example, the pros and cons of a PGC were hotly debated a decade ago in New Zealand, where it was seen variously as a ‘coming of age’ for local authorities to be ‘responsive to local needs’ or ‘an unhindered invitation for small-minded politicians and bureaucrats to meddle and construct empires funded by the taxes of their passive citizens no longer protected by the check and balance that prescription provides’.

In England in 1967, the Maud committee report on the management of local government recommended a PGC. The report argued ‘ultra vires as it operates at present has a deleterious effect on local government because of the narrowness of the legislation governing local authorities’ activities. The specific nature of legislation discourages enterprise, handicaps development, robs the community of services which the local authority may render, and encourages too rigorous oversight by central government. It contributes excessive concern over legalities and fosters the ideas that the clerk should be a lawyer’ (para 283). Forty-three years on, similar sentiments led to the promise of a PGC as a promise in the Coalition Government’s agreed programme.

So far as I can see, the introduction of the PGC for local authorities has sparked very little constitutional concern or even interest in England. There was, for example, no report from the House of Lords Constitution Committee drawing attention to the implication of a PGC for the rule of law. Debate on the bill leading to the Localism Act 2011 was rarely couched in constitutional terms. Why so? I have two suggestions.

First, in the UK there is a general lack of interest in local government from a constitutional standpoint. This seems to be the first post on this blog focusing on local authorities. In law schools, local government has squeezed off the syllabus of most undergraduate public law courses degrees by the Human Rights Act, devolution and Europe. It’s also noteworthy that the House of Lords Constitution Committee has never tackled central-local relations, or local government in and of itself, in an inquiry.

Second, it is possible that the PGC is less constitutionally and legally significant than at first sight it appears to be. In 1967, Maud committee report did consider the constitutional implications of its recommendation to create a PGC. The report sought to reassure the ‘fun-loving guys’ in local government: ‘the modification we propose would not mean that local authorities would cease to be subject to the rule of law. The supremacy of Parliament is not in question. Nor are we advocating the abolition of the doctrine of ultra vires for local authorities would still have to work within the statutes. They would continue to have statutory duties and limitations imposed on them and permission powers granted to them, and their governmental and coercive powers would be regulated by law’ (para 284). Some commentators, looking at the version of a PGC contained in the Localism Act 2011, have sought to downplay the scope of councils’ room for manoeuvre. For example, Tim Kerr QC argues that ‘the usual public law constraints (rationality, relevant considerations, procedural fairness, disregard of irrelevant considerations)’ would apply ‘to exercise of the power of general competence, even though an “individual” in the private sphere is not subject to them’. Sections 2 and 3 of the 2011 Act also needs to be considered: the former defines ‘boundaries of the general power’ (in particular, that the PGC doesn’t override express prohibitions of local government action contained in the statute book) and the latter ‘limits on charge in exercise of general power’. To this can be added the controlling force of ‘constitutional legislation’ such as the Human Rights Act 1998 and the Equality Act 2010. Clearly, the 2011 Act does not do away with the idea the local authorities are creatures of statute subject to the constraints of ultra vires.

The truth of the matter is that we do not yet know what councils will do with the PGC. In June 2011, the House of Commons Communities and Local Government select committee, in their report on localism, called on the ‘Government work with the Local Government Association to set out examples of specific ways in which the general power of competence will enable local authorities to extend their role beyond that conferred by the well-being powers.

However the power is used something of significance affecting the rule of law has been brought about by s 1 of the Localism Act. As Laws J explained in Fewings, ‘The rule [that any action by a public body must be justified by positive law] is necessary in order to protect people from arbitrary interference by those set in power over them’. Section 1 is ‘positive law’ but of such breadth that it looks as if it will largely be down to the political constitution to shape its use; that, at least, is the Government’s goal. Whether a revitalised local politics is up to the job remains to be seen.

This post originally appeared on the UK Constitutional Law blog on 19 March 2012.

 

Crazy Constitutionalism

UKCLAlogoI’m reading David Aaronovitch’s Voodoo Histories: The Role of the Conspiracy Theory in Shaping Modern History (2009). It’s excellent, but although it makes passing reference to conspiracy theories about the European Union it says nothing about one that deals with the foundations of the British constitutional system.

Sunstein and Vermeule have defined a conspiracy theory as ‘an effort to explain some event or practice by reference to the machinations of powerful people, who attempt to conceal their role (at least until their aims are accomplished)’: see (2009) 17(2) The Journal of Political Philosophy 202, 205. Of course, some conspiracy theories – defined in this way – are both justified and true. What concerns me are those that are unjustified and false. In a bewildering, uncertain and unfair world, where participation in and respect for organised politics is declining and public understanding of the constitution and law is poor, it shouldn’t be a surprise that some people turn to outlandish ways of explaining the constitution. The lack of surprise should not, however, mean that mainstream constitutional lawyers should ignore what I call ‘crazy constitutionalism’. In this blog post I want to shed some light on one particular conspiracy theory and suggest a course of action.

Throughout the UK, there are people who make the claim that the whole constitutional and legal apparatus in Britain is a conspiracy to rob men and women of their common law rights. Drawing on the ‘freeman of the land’ movement from North America, UK groups of various political leanings subscribe to the main tenants of this theory. They include The People’s United Community (TPUC), Lawful Rebellion, the British Constitution Group and White Rabbit Education Network. Their view of the world is propagated through websites, social media, and events across Britain. New supporters are actively recruited. Dozens of people spend evenings and weekends in the study of law, drawing on legal materials but unconstrained by the mainstreams’ basic frameworks of understanding.

On one level, the world imagined seems like a heady mix of ‘The Truman Show’, a Dan Brown novel, ‘Raiders of the Lost Ark’ with a sprinkling of quasi-religious self awakening.

But the freeman belief system is also a call to practical engagement with government and courts. Actions include adopting a particular stance towards official forms (for example voter registration documents, jury summons), which are returned with a series of questions. When an official asks ‘Do you understand’, a freeman of the land will respond ‘I do not stand under that statement’ (to avoid, according to freeman of the land thinking, accepting the jurisdiction of the official).

In legal proceedings in which freeman come to court (‘de facto courts’) in relation to non-payment of council tax, repossession actions, bankruptcy proceedings and criminal prosecutions, hearings are disrupted by self-proclaimed freemen of the land working through a series of rituals: on entering a court, he may say to the judge: ‘We claim common law jurisdiction before we enter this vessel … do we have an accord?’. (The reference to the court as a ‘vessel’ is explained by the central place given to maritime law in the legal worldview of freemen).  The judge will be asked if he or she is ‘on oath’. Confusion may reign as the freeman places a birth certificate before the court. Most dramatically, on 7 March 2011 several hundred freemen stormed a court in Birkenhead in an attempt to arrest the judge.

Freemen of the land dismiss mainstream accounts of the constitution and legal system as a deception, perpetrated on a huge scale. At the heart of freeman of the land constitutional framework is the idea that there is a fundamental distinction to be drawn between a natural man/woman and a corporation. When parents register the birth of a child, they are entering a contract with the State to ‘sign over the legal title of the baby’. At that point, the child becomes a ‘strawman’, a fictitious legal entity owned by the State and used as collateral in commercial transactions. Significance is attached to the fact that birth certificates have similar physical attributes to documents used in commerce – watermarks, dates of issue, registration numbers, and so on. Using the naming conventions of freemen of the land, “Mr Andrew Le Sueur” is the person – the legal fiction or birth certificate; “Andrew, of the Family Le Sueur” is the man. In court proceedings, a freeman of the land will produce a birth certificate as the ‘person’ summoned to appear and the man is regarded as a ‘lay adviser’.

Freemen of the land express their understanding of the constitution using what at first sight seems like vocabulary and legal concepts which are familiar to mainstream constitutional lawyers: ‘personality’, ‘jurisdiction’, ‘lawful authority’, ‘common law’ and ‘the rule of law’.

A basic aspect of the belief is that public bodies – local authorities, the police, government departments, courts – are corporations run for profit (as evidenced by the facts that some have ratings by credit reference agencies and some have county court judgments registered against them). Another key tenet of belief is that men and women have the ability to choose which ‘law form’ they operate under. This state of affairs is thought to be derived from clause 61 of Magna Carta 1215 (a provision omitted from later reissues of the charter). Freemen of the land assert that they are not bound by legislation or commercial law (of which maritime law is of especial importance) unless they consent to be bound in a particular situation. Official demands – for payment, to appear in court, to complete the census – are merely invitations that may be declined.

Lawyers working in the mainstream are likely find it easy to dismiss the freeman of the land movement as pseudolegal woo (at the same time as accepting that there are sincere and well-meaning people involved in the cause). If the movement in the UK were confined to a few websites, clips on YouTube and meetings in draughty community centres, no more would need be said. Trivial disruption of public administration – whether it’s refusing to complete the census or pay TV licences—might also be overlooked. But the events in Birkenhead County Court on 7 March 2011, even if it praised by some Daily Mail readers—escalates matters. It is time to take the freeman movement seriously.

A starting point needs to be research into the phenomenon, its impact on public administration and the rule of law. It would be interesting to know whether HM Court and Tribunal Service keep records of hearings disrupted by freemen of the land tactics and what, if any training, magistrates and other judges receive in dealing with freemen.

One practical strategy advocated by Sunstein and Vermeule is introducing some ‘cognitive diversity in the groups that generate conspiracy theories’ (op cit, 226). They have in mind infiltration by ‘government agents’. In an era of radical cost cutting in public services, suggesting that local government officers and civil servants should spend time contributing to freeman of the land online discussion sites is unthinkable; I also have doubts as to whether official intervention is desirable. But shouldn’t academics and legal professionals – as concerned citizens – dip into them now and then, to ask some challenging questions and state some facts?

Originally published at http://ukconstitutionallaw.org/2011/07/22/andrew-le-sueur-crazy-constitutionalism/

McGonnell and the Bailiffs of Jersey and Guernsey 11 years on

UKCLAlogoLawyers and legal academics from outside the Channel Islands tend to know only three things about the legal systems of Jersey and Guernsey. One is that islands have deployed their constitutional status as Crown Dependencies to develop into major offshore finance centres.  Another is that they have a continuing connection with the pre-revolutionary customary laws of Normandy. And, third, that each island (they are separate jurisdictions) has a ‘bailiff’—a snippet of knowledge in circulation thanks largely to the European Court of Human Rights eleven year old ruling inMcGonnell v United Kingdom.

Richard McGonnell wanted to convert a flower packing shed next to his commercial glasshouses into living accommodation but was refused planning permission under the island’s detailed development plan (‘DDP6’) and was subsequently prosecuted when he went ahead regardless. In 1995 the Royal Court of Guernsey dismissed his appeal: the presiding judge was the Bailiff who five years previously (as the then Deputy Bailiff) had been the presiding officer at the sitting of the Island’s parliament when the development plan had been debated. Five years later Strasbourg ruled:

“The Court thus considers that the mere fact that the Deputy Bailiff presided over the States of Deliberation when DDP6 was adopted in 1990 is capable of casting doubt on his impartiality when he subsequently determined, as the sole judge of the law in the case, the applicant’s planning appeal. The applicant therefore had legitimate grounds for fearing that the Bailiff may have been influenced by his prior participation in the adoption of DDP6. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the Royal Court, and it is therefore unnecessary for the Court to look into the other aspects of the complaint.”

What have been the consequences of this ruling?

Mr McGonnell and his business moved on to pastures new … in Kenya where he continues to grow flowers and carry out charitable work through the Rotary Club. Interviewed for the Guernsey Press in 2003 (in an article entitled “Local grower brings down Lord Chancellor”), he is reported as saying “I have been proved justified in my actions. A lesser person, or one who had something to lose, may not have gone all the way and succumbed to the bully boy tactics of the Guernsey States”.

It is doubtful that Mr McGonnell’s litigation can be credited as single-handedly bringing an end to a 1,400-year old office of state in the United Kingdom. Equally Lord Irvine of Lairg’s assertion in a PQ shortly after the ruling that “The position of the Lord Chancellor is unaffected by this case” is, with hindsight, an understatement of its impact. It seems likely that the McGonnellruling was a driver in the decline of the Law Lords’ participation in parliamentary debates and it was part of the constitutional backdrop to Tony Blair’s intention in 2003 to abolish the office of Lord Chancellor and the subsequent debates over remodelling the post.

McGonnell’s waves have also been felt closer to its original Channel Island home. The dual role of Seneschal as President of the legislature (Chief Pleas) and judge in Sark (population 600) was dealt an ECHR Article 6 knock-out blow in the English Court of Appeal in litigation brought by the Barclay brothers (and was not resuscitated by the subsequent appeal to the UK Supreme Court).

The curiosity of the Strasbourg ruling is that while it changed Mr McGonnell’s life, played a role in reshaping the British constitution and killed off the traditional office of Seneschal in Sark, in both Guernsey and Jersey the role of Bailiff has continued largely unchanged. The Bailiffs remain presiding officers of the islands’ respective parliaments and regularly sit as judges as well as continuing to have executive and ceremonial roles as chief citizens.

How come? The practical legal answer is straightforward. The McGonnellruling did not oblige constitutional change to be made: it required only that a judge does not sit in a case concerning a piece of legislation in respect of which the judge had a role during the legislative process. Looking at Jersey, there are a number of people who can preside over the legislature in addition to the Bailiff (the Deputy Bailiff, Greffier (clerk) or an elected member) and there several members of the judiciary able to sit in the Royal Court instead of the Bailiff (the Deputy Bailiff and part-time Commissioners, who include people of the stature of Jonathan Sumption QC). In practice, boxing and coxing can avoid an infringement of McGonnell.

The judiciary, court administration and lawyers have adopted a relaxed approach. In May 2010 ––ten years on from the Strasbourg ruling––Jersey Bailiff Mr Michael Birt told a committee of inquiry (see below) “we probably need to improve our systems to be very compliant with McGonnell and that one probably ought to keep a running list of those statutes where I have presided so at least I could invite the parities to consider whether they wanted to object or not”. It is possible to identify post-McGonnell litigation in which the Bailiff was presiding in the legislature in respect of legislation on which he later was called on to consider judicially. For example, in Moran v Deputy Registrar of the Parish of St Helier [2007] JRC 151 the issue was whether a child born to unmarried parents could be registered in the father’s family name or whether customary law permitted only the mother’s name. The then Bailiff had to consider the Marriage and Civil Status (Forms, Registration and Fees)(Jersey) Order 2002, which had been tabled in the legislature when he was presiding. Neither the parties nor the court raised any McGonnell point, notwithstanding that the high profile case turned in part on whether the Registrar’s practice was compatible with Convention rights under the Human Rights (Jersey) Law 2000.

In the political arena outside the island’s courts both islands have undergone constitutional reforms over the past 10 years, though in different directions. Jersey embraced ministerial government in 2005 while Guernsey has retained a more consensual, committee-based system of government.  Each island has, however, created a Chief Minister as the elected head of government. (Jersey’s is currently Senator Terry Le Sueur, who is not related to me). So far, in both islands the office of Bailiff has weathered the storm of these changes as well as the McGonnell ruling.

In Guernsey, there has been little debate about the office of Bailiff. In Jersey, by contrast, the need or otherwise to reform the office of Bailiff has been the subject of political controversy. At the prompting of Jersey’s indefatigable human rights champion Deputy Bob Hill, a committee of inquiry was set up. Chaired by Lord Caswell, it reported in December 2010. The Carswell report and an accompanying legal opinion by Rabinder Singh have satisfied practically nobody in either island. The report recommended that the Jersey Bailiff’s role in the legislature should be replaced by an elected speaker, though in addition to his judicial role, the Bailiff “should continue to be the guardian of the constitution and the conduit through which official correspondence passes” (between the Jersey government and the UK government). People opposed to change see this as a curate’s egg. Those calling for reform see it as not going far enough. In neighbouring Guernsey, the Bailiff said the report was “very, very thinly argued indeed”. The Singh opinion also pleased just about nobody: he said that “there is no reason in law why the present constitutional arrangements in respect of the Bailiff should be altered. However, the trend suggests that the tide of history is in favour of reform and that the legal position will be different in 10 years time”. No steps to implementing the Carswell report recommendations will be taken until after Jersey’s October general election; it is on the cards that the new States of Jersey assembly will reject them.

So the office of Bailiff continues in the Channel Islands. There is a twist in the tail. Sir Philip Bailhache, who for almost 20 years held successively the posts of Solicitor General, Attorney General, Deputy Bailiff and Bailiff stepped down from office in 2009, when he was appointed as a Commissioner and continued to sit part-time in the Royal Court. In July 2011 he resigned from the bench – in order to stand in the October 2011 election for one of the four vacant senatorial seats. His platform is constitutional reform, though not to the office of Bailiff. While in other jurisdictions moves from judicial bench to elected office are not the norm, in Jersey there are precedents. The island’s magistrate resigned and was elected to the States in 2008 and is currently the Home Affairs Minister. And in 1993, Vernon Tomes topped the polls and was elected to the legislature a year after he was dismissed as Deputy Bailiff by the UK Home Secretary.

The interface between law and politics in the islands is far more subtle, complex and interesting than a casual reader of the McGonnell judgment might imagine.

Originally published http://ukconstitutionallaw.org/2011/09/22/mcgonnell-the-bailiffs-of-jersey-and-guernsey-11-years-on/