Davis, ‘Extra-Constitutionalism, the Human Rights Act and the ‘Labour Rebels’: applying Prof Tushnet’s theories in the UK’

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You are here: BAILII >> Databases >> United Kingdom Journals >> Davis, ‘Extra-Constitutionalism, the Human Rights Act and the ‘Labour Rebels’: applying Prof Tushnet’s theories in the UK’ URL: http://www.bailii.org/uk/other/journals/WebJCLI/2006/issue4/davis4.html Cite as: Davis, ‘Extra-Constitutionalism, the Human Rights Act and the ‘Labour Rebels’: applying Prof Tushnet’s theories in the UK’

Extra-Constitutionalism, the Human Rights Act and the ‘Labour Rebels’: applying Prof Tushnet’s theories in the UK

Fergal F Davis

BCL (NUI), MA (Criminal Justice Studies)(Uni. of Leeds), PhD (Dublin University)

Lecturer in Law
The School of Law,
University of Sheffield
Crookesmoor Building
Conduit Road
Sheffield S10 1FL.

I am extremely grateful to Prof Mark Tushnet, George Washington University, for his kind assistance. All errors are entirely my own.

Summary

The control of executive power during periods of emergency is important but complicated. One key problem arises from the need to guarantee that the executive does not abuse its power at a time when there can be considerable pressure to act, while at the same time ensuring that the courts do not prevent the executive from maintaining the security of the state. This article aims to examine Prof Mark Tushnet’s emerging theory of extra-constitutionalism and apply it to the UK. The article will consider the response of the UK government to judicial criticism of its anti-terror legislation in light of s.4 of the Human Rights Act, 1998 (HRA). Finally, the feasibility of adopting Tushnet’s proposed control of the executive by the legislature and public will be discussed. In particular consideration will be given to the effectiveness of such non-judicial forms of review within the framework of the UK’s electoral and Parliamentary systems.

Introduction

The New Labour government has, since the 2005 election, had to cope with backbench rebellions and the loss of key anti-terror votes in the House of Commons. This new political reality means that it is now appropriate to consider the theory of extra-constitutionalism in the UK context. Extra-constitutionalism is, essentially, a theoretical means by which executive power can be controlled during times of emergency. The theory has been developed by Prof Mark Tushnet in the context of the US Constitution; this article will examine the usefulness of applying it in the UK.

Control of the executive in times of emergency

Traditionally the control of the executive is regulated by the separation of powers. As every first year law student will tell, “absolute power corrupts absolutely”, and the separation of powers operates to ensure that no single branch of government has absolute power. Thus, executive actions can be controlled through judicial review procedures or by means of executive accountability to Parliament. These “mechanisms aim to ensure that the national government exercises its powers responsibly – with sufficient vigour to meet the nation’s challenges, but, without intruding on protected liberties” (Tushnet, M 2005, p 2673). In times of emergency the executive branch may feel that is necessary to take actions which it would not normally contemplate; such as, the introduction of internment without trial or non-jury (Diplock) courts in Northern Ireland. When such measures are employed it is all the more important that the constitution operates to ensure that the executive branch is not exceeding its authority and jeopardising the rights of citizens.

Under the separation of powers mechanism the executive is controlled by the legislature. This can be termed the “ambition counteracting ambition” theory (Tushnet 2005, p 2674, citing James Madison). In the US, “Congress and the President stand in structural opposition to each other, with each side alert to possible ‘power grabs’ by the other that would threaten - simultaneously – the people's liberties and the prerogatives and power of the opposing branch” (Tushnet 2005, p 2674). Mindful of potential ‘power grabs’ both arms of government monitor each other’s actions and prevent abuse. Practically, this means that the legislative branch acts as a non-judicial control over the executive. This mechanism has been weakened by the creation of political parties, “the joint membership of a President and members of Congress in a single political party reduced the incentives on each side to oppose the other: the conflict envisioned in the separation-of-powers mechanism would impair the political party’s ability to accomplish goals shared within the party” (Tushnet 2005, p 2678). As such, some doubt has been cast over the effectiveness of the separation of powers mechanism.

Possibly due to this weakness and probably because we often accept that courts are neutral, disinterested institutions, it is often assumed that constitutional review must occur in the courts and that they are best placed to conduct such review (Tushnet 2003a, p 453). Unfortunately, the judicial review mechanism is also prone to weakness and in the context of emergency powers two problems in particular emerge. Firstly, during times of emergency or unrest the judiciary may be unwilling to fetter the executive because judges will not want to be accused of endangering public safety. Secondly, constitutionalising such emergency powers can be seen as posing even greater long-term problems.

“Constitutional provisions dealing with emergency powers place regimes of exception within the constitutional order. Constitutional provisions dealing with emergency powers provide a language of justification for the invocation of emergency powers, even though the precise language used in the constitution may be inapt for the occasion on which emergency powers are invoked (Tushnet 2003b, p 304).

This difficulty can arise in one of two ways: either the constitution or constitutional document can expressly provide for a certain emergency power; or the constitutional document can be interpreted by the courts in a manner which appears to allow the emergency power. An example of the first mechanism can be seen in Article 28.3 of Bunreacht na hÉireann, the Irish Constitution, which provides for the creation of Special Criminal Courts when the ordinary courts are inadequate. The constitution anticipates the creation of such emergency courts and places them on a constitutional setting. The nature of the unwritten constitution of the UK makes such a scenario unlikely, although we shall revisit this point in the context of the HRA. The second mechanism occurs when the courts interpret the constitution in a way which upholds the emergency power.

The courts may be willing to accommodate the executive during times of emergency. Reasons for such judicial accommodation are varied, but the experience of the Irish courts during World War II (WWII) dramatically illustrates the point. The Irish High Court judgment of Justice Gavan Duffy in the State Burke v. Lennon [1940] IR 136 has, rightly, been described as a tour de force (Hogan 2000, p 244). Justice Gavan Duffy ruled that in satisfying himself that a person was engaged “in activities calculated to prejudice the preservation of the peace, order, or security of the State” (s.55 Offences against the state Act, 1939) and on that basis ordering the arrest and detention of such a person, a minister was acting in a judicial manner and was, therefore, ultra vires the Constitution. As a result, the government’s wartime policy of interning Irish citizens had to be abandoned and over fifty prisoners were released from custody (Kelly 1967, p 83). Shortly after the prisoners were released, the IRA raided the Magazine Fort in the Phoenix Park (Carroll 1975, p 39): 1,084,000 rounds of ammunition were taken in the raid (Dáil Éireann 3 January 1940, col. 1322). Unsurprisingly, “some of the persons just released were believed to be implicated” in the raid (Kelly 1967, p 83). The government responded by amending the legislation: in a rather literal interpretation of Justice Gavan Duffy’s judgment, the amendment provided that a minister no longer had to be “satisfied” he merely had to be “of opinion” that “any particular person is engaged in activities which, in his opinion, are prejudicial to the preservation of public peace and order or to the security of the State” (s.4(1) Offences against the State Act, 1940). In In re Article 26 and the Offences Against the State (Amendment) Bill, 1940 [1940] IR 470 the Irish Supreme Court upheld the amendment as constitutional. It is highly probable that following the IRA raid the Irish Supreme Court did not want to be seen to hinder the executive in the performance of its duties. The difficulty for the judiciary is that

“judges rarely have the background or the information that would allow them to make sensible judgments about whether some particular response to a threat to national security imposes unjustifiable restrictions on individual liberty or is an unwise allocation of decision making power” (Tushnet 2005, p 2679).

As a result, the courts may choose to adopt a cautious approach and facilitate the executive rather than risk producing a judgment which, although a tour de force, is later seen as having had catastrophic effects. The courts may decide that the issue is one best left to the politicians.

“if courts purport to police the policymaking process but actually supervise it with an extremely loose hand … the judicial review mechanism might worsen the political branches’ performance because their members might mistakenly believe that the courts will bail the people out of whatever trouble the political branches make” (Tushnet 2005, p 2680).

In this situation the legislature will fail to properly supervise the executive because it, wrongly, assumes that the courts will carry out that function; simultaneously, the courts will not adequately supervise the executive because they see the issue as political. The result, to adopt a footballing analogy, is that both central defenders will be caught ball watching and no one will be effectively monitoring the executive.

Extra-constitutionalism

Both the separation of powers mechanism and the judicial review mechanism, therefore, have potential weaknesses. As a result, one might suggest some blue-sky thinking. Tushnet does briefly outline an alternative based around the creation of a new institution: an institution created free from the shackles of the US Constitution; a fresh constitutional approach; however, he goes on to admit that, he is “not particularly creative in imagining alternative institutional designs that would ensure that power be exercised wisely under modern circumstances” (Tushnet 2005, p 2681). The response of this author is to say, “nor am I”. Extra-constitutionalism provides something of a middle ground between the judicial review and separation of powers mechanisms, and does not require the imaginative creation of any new institutions.

In order to express his theory of extra-constitutionalism Tushnet examines the decision of the US courts in Korematsu v. US (1944) 323 US 214. This case arose from Executive Order 9906 signed by President Roosevelt on 19 February 1942. The Order authorised the Secretary of War, or any military commander he might choose, to “prescribe military areas in such places and of such extent as he ... may determine, from which any or all persons may be excluded” (Ten Broek et al. 1975, p 112). The Order was supplemented by Public Law 503 which provided a means of enforcement (Irons 1983, p 7). Combined these laws provided for the relocation and internment of Japanese Americans living on the West coast of the US (Rostow 1945, p 489). In March 1942 a policy of encouraging Japanese Americans to relocate away from the West coast was introduced. By early April exclusion orders were being issued which only applied to Japanese Americans and Japanese aliens. Individuals were excluded from the West coast area and ordered to report to control stations. From here they were detained in camps organised by the War Relocation Authority (WRA) (Rostow 1945, p 498). Initially these camps were to provide temporary accommodation for those who had been unable to secure an alternative. However, that policy soon changed and detention in the camps was compulsory to facilitate “loyalty examinations”. Surprisingly, a determination of loyalty did not guarantee freedom. “Officials were required to ascertain that community sentiment was not unfavourable to the presence of such citizens before they were permitted to enter the community” (Rostow 1945, p 500). Therefore, those individuals who had established their loyalty found that their release was dependent on public opinion. The WRA defended the measures by arguing that “the ‘racial characteristics’ of Japanese Americans predisposed them to the commission of subversive acts” (Irons, 1983, p 132). The policy was racist in its nature and application and the US government has since paid $1.65billion compensation to 81,664 people of Japanese ancestry (Department of Justice 1998).

The provisions were challenged in a number of cases, (Rostow 1945, infra) however, despite their objectionable features the courts were unwilling to find them unconstitutional. In the Seattle District Federal Court, Black J “raised the spectre of ‘fifth columnists’ … pretending loyalty to the land where they were born” but who might “become enemy soldiers overnight” (Irons 1983, p 113). In Hirabayashi v. United States (1943) 320 US 81 the court considered two counts for which concurrent sentences had been imposed: the first raised the legality of forced transportation and detention in a WRA camp; the second concerned the legality of a breach of curfew. “The Court considered the violation of the second count first, upheld the curfew order and the sentence imposed for violating it. Since the two sentences were concurrent, it said, there was no need to consider the conviction on the first count” (Rostow 1945, p 504). Essentially, the Court avoided the issue. The unwillingness of the judiciary to intervene ensured that it was

“not until the middle of 1946 – almost a year after the surrender of Japan in the wake of the Hiroshima and Nagasaki bombings that ushered in the atomic age – did the last residents of these dusty, barren camps return to their West Coast homes” (Irons 1983, p 492).

The failure of the US courts in Japanese American detention cases is an example of their unwillingness to exercise judicial authority during time of war.

The principle that “amidst the clash of arms the law is silent” is not only applicable in the US.

“Englishjudicial history is littered with cases, such as R v Halliday,ex parte Zadig [1917] AC 260, Liversidge v Anderson [1942] AC 204 and Chandler v DPP [1964] AC 763,which demonstrate that in matters regarding national securitythe courts did not intervene to protect the civil libertiesof individuals from state action” (Shah 2005, p 416).

“It was not … contended that the words of the statute are not in their natural meaning wide enough to authorize such regulations as reg. 14B [under which Zadig was detained] but it was strongly contended that some limitation must be put on these words, as unrestricted interpretation might involve extreme consequences, such as, it was suggested, the infliction of death without trial. It appears to me to be a sufficient answer to this argument that it may be necessary in a time of great public danger to entrust great powers to His Majesty in Council, and that parliament may do so feeling certain that such powers will be reasonably exercised.”

This is an extraordinary statement of judicial self-restraint. In Zadig [1917] AC 260, 276 Lord Shaw dissented arguing that the “appellant is a naturalized citizen of this country. That is to say … he is entitled to the protection of, our laws”; the majority, however, were less radical.

All of this might lead one to conclude that there is “little reason to hope that judges will in fact limit emergency powers in light of constitutional norms rather than interpret the constitution to accommodate exercises of emergency powers” (Tushnet 2003b, p 305). As an alternative it is proposed that “decision-makers might treat emergency powers as extra-constitutional, an understandable departure from the norms of legality” (Tushnet 2003b, p 305). This mechanism would operate as follows:

“the government introduces legislation that is inherently suspect from the prospective of the rule of law, but avoids … provisions that seem in flagrant violation of rule of law principles. The dirty work is done by those charged with implementing the law and the government expects that judges who hear challenges to the validity of particular acts will put aside their role as guardians of the rule of law because in issue is the security of the state”(Dyzenhaus).

In other words, the executive acts in manner which it knows is likely to be unconstitutional and relies on the courts not acting due to the emergency situation which prevails.

This approach is obviously controversial and in many respects is not that different to Finlay LC’s view that we should simply trust the executive. However, the alternative, interpreting the constitution in a manner which suggests that the executive act is constitutional, is more problematic. As Justice Jackson noted in Korematsu 323 US 244, 247:

“once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated … [a] principle [that] lies about like a loaded weapon ready for the hand of any authority that bring forward a plausible claim of urgent need.”

The significant point is this: “it is better to have emergency powers exercised in an extra-constitutional way, so that everyone understands that the actions are extraordinary, than to have the actions rationalised away as consistent with the Constitution and thereby normalised” (Tushnet 2003b, p 306). The extra-constitutionalism model allows the executive to act without forcing the judiciary to compromise on legal principle. Furthermore,

“treating emergency powers as extra-constitutional has another advantage. Decision-makers can then understand that they should regret that they find themselves compelled to invoke emergency powers. Once the emergency has passed they should not only revert to the norms of legality that were suspended during the emergency, but should do what they can to make reparation for the actions they took” (Tushnet 2003b, pp 306-307).

While such an analysis might appear overly optimistic consideration should be given to the political pressure which government would face in the wake of a declaration of extra-constitutionality by the courts.

Extra-constitutionalism and the HRA

The HRA, which was passed as part of the New Labour agenda of constitutional reform, incorporates the ECHR into UK law. It is a highly significant piece of legislation since it allows UK citizens to enforce their Convention rights in the domestic courts (s.6 HRA, 1998). S.3(1)of the HRA provides that all primary and secondary legislation must, so far as is practical, be interpreted in a way which is compatible with the HRA. This is the nearest thing the UK has to an enforceable Bill of Rights. However, the HRA was drafted in such a way as to respect the UK constitutional doctrine of Parliamentary Supremacy. It achieves this balance through s.4 which allows the courts to make a declaration of incompatibility where legislation contravenes Convention rights and the primary legislation prevents the removal of that incompatibility. Significantly, unlike a judgment of the US Supreme Court to the effect that legislation is unconstitutional, a declaration of incompatibility “does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given” (s.4(6)(a) HRA, 1998). Following a s.4 declaration where “a minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility” (s. 10(2) HRA, 1998). Importantly, however, the minister and Parliament are not compelled to amend the legislation. The reason for this is because any element of compulsion would be an attempt to fetter future Parliaments and would, as such, violate the concept of Parliamentary Supremacy.

In Ghaidan v. Godin-Mendoza [2004] UKHL 30 Lord Steyn analysed the application of s.3 and s.4 of the HRA. He concluded that the courts were over utilising the declaration of incompatibility function of s.4. According to Lord Steyn the primary objective of the HRA was to give domestic effect to Convention rights. As such s.3 must be the “prime remedial measure, and s. 4 a measure of last resort” [2004] UKHL 30, 46. Lord Steyn was concerned that the s.4 was being over utilised because the courts were unwilling to exercise their function under s.3 for fear of breaching Parliamentary Sovereignty. He dismissed this argument noting that “if Parliament disagrees with an interpretation by the courts under s.3(1), it is free to override it by amending the legislation and expressly reinstating the incompatibility” [2004] UKHL 30, 43. Lord Steyn’s final conclusion was “to emphasise that interpretation under s.3(1) is the prime remedial remedy and that resort to s.4 must always be an exceptional course” [2004] UKHL 30, 50.

The theory of extra-constitutionalism operates in those situations where the constitution has not anticipated the executive action. Thus, the Irish Special Criminal Court cannot be extra-constitutional since Article 28.3.3º provides for the creation of that institution when the ordinary courts are deemed to be inadequate. Extra-constitutionalism arises “completely outside any framework in which talking about the existing constitution makes sense - where all previous constitutional bets are off” (Tushnet correspondence with the author, 13 January 2006). Strictly speaking, therefore, the theory of extra-constitutionalism cannot be applied to the HRA since the Act anticipates, through s.4, a situation in which the executive behaves in a manner which is incompatible with a Convention right. For the US courts the traditional choice has been between upholding legislation as constitutional and thereby leaving a “loaded weapon”, in the form of precedent, for future authorities; or finding it unconstitutional and running the risk of thwarting the executive in time of war or other emergency. The UK courts are not faced with such a stark decision. The s.3 mechanism has a similar effect to a decision by the US courts that legislation can be interpreted in a constitutional fashion and it runs the risk of leaving a bad precendent for future courts. The s.4 mechanism allows the courts to make a declaration of incompatibility safe in the knowledge that the executive and legislature can choose to continue acting in a manner which is incompatible with the HRA if necessary. This second mechanism is similar to how Tushnet envisages extra-constitutionalism operating within the context of the US Constitution. While s.3 might be the “prime remedial remedy”, in the extraordinary context of emergency powers, it is preferable that the courts employ the s.4 remedy of last resort.

If s.4 of the HRA provides an example of extra-constitutionalism in operation why have the media and the government reacted to s.4 declarations as if they were judicial rulings of unconstitutionality? Following the initial ruling of the House of Lords in A & others v. Secretary of State for the Home Department [2004] UKHL 56 the UK the Daily Telegraph announced that the judgment had “left the government’s policy on how to deal with foreign terrorists in … a giant mess” (Palmer 2004). Two days earlier, the same newspaper said that “the government is caught between a rock and a hard place. The rock is the threat from international terrorists and what to do about them; the hard place is that European human rights laws make it very difficult to do anything” (Johnston 2004). Furthermore, in a letter to his new Home Secretary, John Reid, Prime Minister Tony Blair, referring to the HRA, stated: “we will need to look again at whether primary legislation is needed to address the issue of court rulings which overrule the government” (Temko & Doward 2006). Such reactions appear to misunderstand the power of the courts in HRA cases.

Lord Bingham specifically acknowledged that the House of Lords could not hamper the will of Parliament and identified s.4 of the HRA as a means of maintaining the democratic legitimacy of the court’s actions. In A & others v. Secretary of State for the Home Department [2004] UKHL 56, 42 he stated that while

“the Attorney General is fully entitled to insist on the proper limits of judicial authority … he is wrong to stigmatise judicial decision-making as in some way undemocratic ... The effect is not, of course, to override the sovereign legislative authority of the Queen in Parliament, since if primary legislation is declared to be incompatible the validity of the legislation is unaffected (section 4(6)) and the remedy lies with the appropriate minister (section 10), who is answerable to Parliament. The 1998 Act gives the courts a very specific, wholly democratic, mandate”.

The effect of the judgment was not to invalidate the legislation, since the House of Lords does not possess that power. The true effect of the judgment was that the UK governments’ derogation from its Convention duties was found to be ineffective and the detention provisions of the ATCSA were held to be incompatible with the HRA, however, it remained for Parliament and the government to act upon that finding. If they were of the opinion that s.23 of the ATCSA was vital to protect the security of the state they could have chosen to ignore the s.4 declaration of incompatibility and proceeded to continue to detain individuals under s.23 of the ATCSA.

The government reaction to the decision in A v. the Secretary of State for the Home Department is quite instructive. The Home Secretary, Mr Charles Clarke acknowledged that “it is ultimately for Parliament to decide whether and how we should amend the law” (HC Deb. vol. 428, col. 151, 16 December 2004). Such a statement might lead one to suppose that the executive was willing to consider the possibility of ignoring the judgment and proceeding in an extra-constitutional fashion. Presumably, if the government was aware that the courts could not force it to act and if they were of the opinion that the legislation was necessary then the government would make a case for not amending the legislation and maintaining Part 4 of the ATCSA. That is not what occurred. Instead, the government acknowledged that it could ignore the courts, stated how important it believed Part 4 of the ATCSA to be and then repealed it replacing it with alternative legislation. The Home Secretary stated that,

“the Government believed that the part 4 powers were justified … and … it was necessary to take positive action against peripatetic terrorists who happened to be living here … In these circumstances, I repeat that my judgment is that there remains a public emergency threatening the life of the nation. The absence of the part 4 powers would present us with real difficulties (HC Deb. vol. 430, col. 306, 26 January 2005)”.

If the absence of Part 4 powers presented real difficulties for government then the option of maintaining Part 4 powers was available. Instead it chose to announce a new twin-track strategy of deporting foreign nationals (with assurances that they would not be tortured) and introducing control orders for “containing and disrupting those whom we cannot prosecute or deport” (HC Deb. vol. 430, col. 307, 26 January 2005). The government, therefore, must have concluded that it was preferable to repeal of Part 4 of the ATCSA rather than retaining legislation which had been declared incompatible with the HRA.

In a further blow to the government, the new control orders were challenged in Secretary of State for the Home Department v. MB QBD (Unreported) 12 April 2006. Sullivan J, in the High Court, held that the interference with the respondents Article 8 right to family life and privacy might have been justified by issues of national security, however the court determined that these issues must be balanced against the respondents right to a fair hearing under Article 6. Under the s.3(10) of the Prevention of Terrorism Act, 2005, the court could merely review the legality of the Secretary of State’s decision to issue a control order on the basis of the evidence available to the Secretary of State at the time when he made the order. The court could not consider any subsequent evidence which might have come to light. Sullivan J stated that “the court would be failing in its duty … if it did not say, loud and clear, that the procedure under the 2005 Act … were conspicuously unfair”. The unfair nature of the procedure stemmed from the fact that the decision of the Secretary of State was not subject to “effective judicial supervision”. As such, Sullivan J held that s.3 of the prevention of Terrorism Act, 2005 was incompatible with the HRA 1998.

The judgments in A and MB provide an illustration of extra-constitutionalism at work through the HRA, 1998. Rather than interpreting the legislation to be in line with the HRA or accepting a dubious derogation the courts can make a declaration of incompatibility. This ensures that “everyone understands that the actions are extraordinary”, which is preferable to having “the actions rationalised away as consistent with the … [HRA] … and thereby normalised” (Tushnet 2003b, p 306). Importantly, a declaration of incompatibility does not give the executive a blank cheque. The executive must weigh up the consequences of its actions and although it may choose to act in a way that has been declared incompatible with the HRA it will only do so if it believes that this will be politically acceptable. Part 4 of the ATCSA was repealed because, although the government believed it to be important it did not believe it to be so crucial that it was worth continuing to act in defiance of the House of Lords.

There have been some significant challenges to the theory of Parliamentary Supremacy. In Jackson v. the Attorney General [2005] UKHL 56 the House of Lords considered the validity of the Parliament Act, 1949. If the 1949 Act was invalid then the Hunting Act, 2005, which was passed under the Parliament Act, 1949 would also be invalid. While the Hunting Act is not itself relevant here the comments of their Lordships are worth noting. Lord Hope stated that “Parliamentary sovereignty is no longer… absolute” [2005] UKHL 56, 49. In a more detailed analysis of Lord Steyn argued:

“the classic account by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle… In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish” [2005] UKHL 56, 47.

Their Lordships are arguing that Parliamentary Supremacy might be limited by the judiciary if Parliament were to attempt to interfere with some other constitutional right such as the right to judicial review. The exceptional circumstances outlined by Lord Steyn might require some level of judicial activism which would necessitate the courts restricting Parliamentary Supremacy. However, due to the historical analysis already provided and the danger of leaving bad precedent, it is contended that in emergency situations the courts should continue to apply s.4 of the HRA and should continue to respect the doctrine of Parliamentary Supremacy.

Public Protest and ‘Labour Rebels’

Given all of the above we must return to one of the earlier questions in this article: how can we maintain control over the executive? In the absence of binding judicial control the power vacuum would have to be filled by “the legislature and the people acting in their constitutional capacity” (Tushnet, in corrspondence with the author 31 August 2005). In “V for Vendetta” a terrorist dressed as Guy Fawkes inspires the British people to overthrow an autocratic government. In the end it is not Fawkes blowing up of the Houses of Parliament which brings about change; it is the strength of public opinion, as expressed by a mass march, in defiance of the Chancellor, by people wearing Guy Fawkes masks (V for Vendetta Warner Bros. 2006). The anti-war protest movement might be considered analogous to the march in V for Vendetta. On 15 February 2003 more than a million people took to the streets to protests against the war in Iraq (The Guardian 27 December 2003). The protests did not prevent the war from beginning on 20 March 2003 (King & Hamilos 2006), however they did affect the Prime Minister’s popularity.

The legislature’s weakness in holding the executive to account in an era of political parties has already been commented upon. That weakness is further emphasised in the situation of a fused executive and legislature such as operates in the UK. The UK executive, by definition, controls a majority within Parliament. As a result, in order for Parliament to hold the executive to account it requires members of the governing party to ‘rebel’ and vote against the government. It is not inconceivable that such a backbench revolt would cause a loss of confidence in the government which would result in a general election and as the old saying goes turkeys do not generally vote for Christmas. Two factors should be taken into account at this point. Firstly, it is arguable that the kind of matters upon which the government is likely to wish to act in a manner which is incompatible with the HRA are exactly the kinds of issues likely to inspire a backbench revolt; and secondly, recent history has shown that MPs are, on occasion at least, willing to engage in such a revolt. Arguably, the unpopularity of the war in Iraq has encouraged Labour MPs who are unhappy with government policy to rebel and vote against the government. Commentators estimate that “the number of serial Labour rebels is now in the twenties”(The Guardian 2 February 2006). Such levels of backbench dissent provide some support for the argument that Parliament is capable of exercising its controlling function over the government. It is important not to over simplify and while some of these back bench revolts may be in defence of liberty it is equally apparent that much of this unrest is due to a dissatisfaction among Labour MPs with general government policy; as is evident from the rebellions on education reform and banning smoking. Prime Minister Blair’s declaration that he will step down before the next election may also have weakened him politically and leaves his government open to the kind of revolts which might not occur under a new leader: Labour MPs might be less willing to vote against a leader who could potentially be in power for a number of years to come rather than one who is in his final term of office. From the point of view of the extra-constitutionalism thesis the important fact remains that in the right circumstances Parliament is willing to hold the executive to account and the public - if the issue is important enough - are willing to express their dissatisfaction with government policy.

At this point in time it is impossible to assess the effectiveness of the legislature and the public in controlling the executive during emergencies. After all, Labour, under the leadership of Prime Minister Blair was returned to power in the general election of May 2006. Despite some embarrassing defeats in the Commons the government looks secure and is proceeding with its anti-terror policies. Ninety-day detention may have been defeated but twenty-eight day detention was accepted and control orders are in place. This might be the result of Parliament effectively controlling the excesses of government or it might be a sign of Parliament’s inability to prevent government over reaction: such a judgement depends on the justifiability of twenty-eight day detention and is beyond the scope of this article.

Conclusion

Extra-constitutionalism, as a theory, provides a new framework for resolving the potential difficulties which surround controlling executive actions during times of emergency. Rather than relying on the courts to exercise their function of constitutional review, which can lead to an interpretation of the constitution or constitutional document in a way which leaves a “loaded weapon” of precedent for future governments; rather than giving the extraordinary power the fig leaf of respectability which comes from a judgment declaring the act or action constitutional, the courts can allow the executive to act while making it clear that the actions are beyond the legal norm. The HRA provides a similar mechanism in the guise of s.4 and the declaration of incompatibility power. Under this mechanism the courts may declare an act or action to be incompatible with the HRA without forcing the government to amend their policies. The government is then faced with the option of amending the legislation, or leaving it as it is while accepting that it has been declared incompatible though not invalid. If the power is important enough, as Tushnet has suggested in the context of extra-constitutionalism,

“decision-makers … should regret that they find themselves compelled to invoke [the] emergency powers. Once the emergency has passed they should not only revert to the norms of legality that were suspended, but should do what they can to make reparation for the actions they took” (Tushnet 2003b, pp306-307).

The judiciary do not have the power to hold the executive to account in such situations. This judicial inability might be welcomed, since judicial control is a weak mechanism prone to unintended consequences and capable of leaving bad precedent for future courts and governments. The control of executive action during such periods of emergency rests with Parliament and the people. Such a responsibility has the potential to reconnect the people and Parliament and could be harnessed as part of the re-energising of popular democracy. If the government chooses to ignore the declaration then the public at large and Parliament in particular must consider the justifiability or otherwise of the actions taken. It is perhaps easier for the legislature to act where the executive and legislature are not merged and where “Congress and the President stand in structural opposition to each other, with each side alert to possible ‘power grabs’ by the other” (Tushnet 2005, p 2674). Under our system of Parliamentary democracy it is important that Parliament and the public become aware of their constitutional role in holding the executive to account. A shift of mindset is required before Parliament and the public can assume the responsibility of controlling the executive: they must understand that the courts are not going to fulfil that function. If they do not accept this mantle of responsibility the effect would be that the courts would not exercise control, because s.4 of the HRA does not empower them to act and Parliament and the public would not exercise control because they assume it is the role of the courts. This would return us to the position in Zaldig and we, like Finlay LC before, would have to trust the Queen in Council to behave reasonably. I respectfully suggest that it would be better to remind Parliament and the public of their constitutional obligations.

Bibliography

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Ten Broek, J; Barnhart EN; & Matson, F (1975) Prejudice War & the Constitution: Causes & Consequences of the Evacuation of Japanese Americans in World War II, 5th ed, (Berkeley: University of California Press).

Tushnet, M (2003a) ‘Non-Judicial Review’ 40 Harvard Journal on Legislation 453.

Tushnet, M (2003b) ‘Civil Liberties in a Time of Terror: Defending Korematsu?: Reflections on Civil Liberties in Wartime’ Wisconsin Law Review 273.

Tushnet, M (2005) ‘Replies: Controlling Executive Power in the War on Terrorism’ 118 Harvard Law Review 2673.

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		[2006] 4 Web JCLI

United Kingdom Journals

Extra-Constitutionalism, the Human Rights Act and the ‘Labour Rebels’: applying Prof Tushnet’s theories in the UK