British and Canadian Public Law in Comparative Perspective

Ian Loveland

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509931101
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

This book explores current human rights controversies arising in UK law, in the light of the way such matters have been dealt with in Canada. Canada's Charter of Rights predates the United Kingdom's Human Rights Act by some 20 years, and in the 40 years of the Charter's existence, Canada's Supreme Court has produced an increasingly sophisticated body of public law jurisprudence. In its judgments, it has addressed broad questions of constitutional principle relating to such matters as the meaning of proportionality, the 'horizontal' impact of human rights norms, and the proper role of judicial 'dereference' to legislative decision-making. The court has also considered, more narrowly, specific issues of political controversy such as assisted dying, voting rights for prisoners, the wearing of religious symbols, parental control of their children's upbringing, the law regulating libel actions brought by politicians, pornography and labour rights. All of these issues are discussed in the book. The contributions to this volume provide detailed analyses of such broad and narrow matters in a comparative perspective, and suggest that the United Kingdom's public law jurisprudence and scholarship might benefit substantially from a closer engagement with their Canadian counterparts.

1

Introduction

IAN LOVELAND

For British public lawyers with only rudimentary knowledge of Canada’s constitutional history, a first acquaintance with Canada’s foundational constitutional document – the British North America Act 1867 (BNA)¹ – invariably prompts at the least a scholastic equivalent of a raised eyebrow. The preamble to the BNA announces that Canada is to have a constitution ‘similar in principle to that of the UK’ but the subsequent text reveals quite clearly that Canada was to be a federal polity, within which both the ‘national’ and provincial legislatures were lawmakers of limited jurisdiction, and where the courts would – though this was a matter of necessary inference rather than explicit textual provision² – exercise a power to invalidate ‘Acts’ from either legislative sphere if they considered that those limits had been transgressed.

The ‘similar in principle’ descriptor had prompted Professor Dicey, in the first (1885) edition³ of his (subsequently) celebrated Introduction to the study of the law of the constitution, to suggest that the Act preamble was an exercise in ‘official mendacity’.⁴ Dicey’s primary objection was of course that Canada had been constituted as a federal state, in which the national and provincial spheres of government had defined and judicially enforced limits on their respective legislative competences, characteristics which clearly did not feature at all in the (1867) British constitution. By the time the fifth edition was published in 1915, Dicey had moderated the tone, if not the substance, of his initial indignation, dropping the ‘mendacity’ comment while retaining the passage reproduced below:

If preambles were intended to express anything like the whole truth, for the word ‘Kingdom’ ought to have been substituted the words ‘States’: since it is clear that the Constitution of the Dominion is in its essential features modelled on that of the Union.⁵

Dicey’s first reaction and his second thoughts were perhaps rather overstated, particularly if one construes them as suggesting that judicial construction of the BNA was consciously seeking to fashion a political society with a constitution similar in principle to that of the US. The initial flirtation that Canadian courts conducted with the case law of their US counterparts in construing the BNA was rapidly and firmly disapproved by the Privy Council, both explicitly⁶ and by the implicit device of simply not bothering to engage at all with American authorities which had been painstakingly examined by Canadian judges.⁷

The existence of a federal polity and consequently judicial review of legislation in Canada were manifestly matters of dissimilarity between the UK and Canadian constitutions.⁸ The similarities were nonetheless appreciable, albeit that they existed – particularly in the UK – as much in the realm of convention as that of law. Both constitutions hosted a bicameral national legislature with only one elected house with assent to bills given by the Queen or her appointee. Both countries formed national ministries on the basis of a government responsible to the lower house and thence to the electorate. And until very recently, neither jurisdiction – nor the legislatures, governments and courts within them – had been much troubled by the challenge of reconciling legislative preferences with moral principles relating to human rights protection articulated in nationally applicable statutory or supra-statutory legal instruments.

The Canadian law reports certainly contain examples of what we now regard as human rights norms being indirectly protected by judicial decisions which invalidated provincial legislation on the basis that the relevant statute interfered unacceptably with a matter within the jurisdiction of the Dominion Parliament.⁹ And in the 1950s the Supreme Court produced a sprinkling of decisions in which that dominion-provincial allocation of powers issue was framed in terms of the ‘rights’ of particular individuals.¹⁰ However, Prime Minister Diefenbaker’s Bill of Rights, enacted in 1960, had little substantive impact, in part because its reach was limited to the actions of the national legislature and government and in part because of distinct timidity within the Supreme Court in the construction and application of the Act’s terms.¹¹ And of course the dominant orthodoxy in the UK was that even if the refashioning of the constitution in that manner should ever be thought politically desirable by a parliamentary majority, itself a most unlikely proposition, our adherence to a Blackstonian and Diceyan understanding of the sovereignty of Parliament meant that any legislative attempt to do so would be legally futile.¹²

By the mid-1970s, in the UK context, directly effective European Community law provided a possible source of supra-statutory protection for those aspects of human rights law which could be brought within the initially limited reach of community law matters,¹³ particularly following the House of Lords’ (1991) conclusion in Factortame (No 2) that directly effective community law was not subject to the orthodox doctrine of implied repeal by subsequently enacted statutory provisions.¹⁴ Whether that judgment should properly be seen as an evolution or revolution in the UK’s constitutional order has become a somewhat moot point given our departure from the European Union,¹⁵ but for a (in constitutional terms) brief period of some 30 years the significance of community law as supra-legislative source of human rights protections in the UK grew appreciably as the scope of community (and then Union) law increased.¹⁶ In the same era, we also saw a gradual emergence and hardening of a notion of ‘legal certainty’ or ‘common law constitutionalism’, which was sporadically invoked by the judiciary as a justification to construe statutory provisions which courts regarded as interfering with fundamental constitutional principles in ways which accommodated rather than conflicted with those principles.¹⁷

But neither jurisdiction faced the challenge long familiar to courts in the US of subjecting all spheres of legislative and executive governance to review against a clearly articulated coda of supra-legislative human rights norms. Some 20 years ago the UK took a tentative step in that direction when its Parliament enacted the Human Rights Act 1998 (HRA 1998). The HRA 1998 can properly be seen as a significant step in the evolution of the UK’s constitution, alongside the near contemporaneous moves made to establish devolved systems of government in Scotland, Wales and Northern Ireland. Those changes obviously pale in significance when compared to the peaceful revolution brought about in Canada’s constitutional arrangements in 1982, which removed many of the ‘similarities’ between the two countries’ constitutions by identifying aspects of Canada’s legal order as ‘fundamental’ in a legal rather than simply conventional sense, and subjecting their alteration to a variety of lawmaking mechanisms that required a much higher level of political consent than simply bare majoritarian support in a national legislature.

Whether those reforms – which lent Canada’s constitutional arrangements a distinctly American hue – have left it with a governmental system which is notably ‘better’ than that retained in the UK – is a question which does not permit of any easy answer. And that is not a task which this book even attempts to address. Much more modestly, this collection of essays seeks to explore some of the insights that British public lawyers might gain from the head start that Canadian courts and politicians have had over their British counterparts in respect of some major public law matters because of the relative longevity of the Charter in comparison with the HRA 1998. The Charter is now almost 40 years old, and has spawned a remarkably extensive and sophisticated body of judicial decisions, dealing both with a panoply of specific human rights issues and with systemic concerns relating to the proper delineation of lawmaking responsibility between courts, legislatures and the sentiments of ‘the people’ as expressed in a constitutional text. We (by which I mean academic and practitioner lawyers in Britain) perhaps do not know as much as we should about Charter jurisprudence, nor indeed about other facets of Canadian public law and history. Acquiring a broader and deeper understanding of the ways in which Canadian courts and politicians have addressed issues of common concern to each of our respective countries is of course no guarantee that we will produce ‘better’ solutions to the issues we confront, but insofar as the legitimacy of our laws rests in part on the intellectual rigour with which they have been produced, applied and evaluated, cross-jurisdictional analysis of the sort undertaken here offers at least a small contribution to achieving that objective.

I.The Chapters in this Volume

In chapter two, Carmen Draghici analyses the UK and Canadian approaches to the legalisation of assisted suicide. Draghici examines the different outcome of constitutional challenges to the previous blanket prohibition of such actions in both jurisdictions, most notably the 2015 landmark cases of Nicklinson¹⁸ (UK) and Carter¹⁹ (Canada), and the legislative change prompted by successful litigation in Canada (the amendment of the criminal code so as to allow medical assistance in dying).

The arguments in the two Supreme Courts are assessed in light of the wider public debate over end-of-life decision-making in the two jurisdictions. The chapter identifies several commonalities in the bioethical discourses underlying both courts’ rulings: the emphasis on protecting the vulnerable rather than on the sanctity of life as an absolute principle; the recognition of a right to decide the timing and manner of one’s death as part of self-determination rights; the prevalence of individual autonomy over a collective belief in the value of life; the refusal to read a right to a certain quality of life or a right to die into the right to life; the acceptance of the moral equivalency of physician-assisted suicide and refusal of life-prolonging medical treatment; deference to the legislative branch as regards the detailed regulation of this area; and references to the lack of prosecution in most cases of assistance in practice.

Draghici also evaluates these courts’ different understandings of their role in facilitating legislative change in morally divisive areas, through a declaration of incompatibility with the HRA 1998 in the UK or a declaration of unconstitutionality in Canada, and, ironically, the British Court’s reluctance to exercise its control function despite the more limited reach of the remedial relief it can offer under the HRA compared to the powers exercised by Canada’s Supreme Court under the Charter. Whilst drawing attention to the distinct conceptualisation of the rights engaged by assisted suicide claims under the HRA 1998 (self-determination) and the Canadian Charter of Rights and Freedoms (liberty and security, life, non-discrimination), the author concludes that the different outcome of legal challenges revolves around the interpretation of the requirement of proportionality of government action restricting individual rights and the feasibility of careful regulation, capable of establishing effective safeguards against error and abuse. She also notes the additional arguments in the Canadian debate (in part stemming from the different factual circumstances, ie terminally ill applicants still capable ...

Table of contents

• Cover
• Title Page
• Preface
• Acknowledgements
• Table of Contents
• Contributors
• 1. Introduction
• 2. Assisted Dying
• 3. Voting Rights for Prisoners
• 4. Horizontal Effect of Human Rights in the UK and Canada
• 5. Private Law, Public Law, Libel Law
• 6. Criminalising Pornography
• 7. ‘Labouring under the Canadian Constitution’ Revisited
• 8. Wearing Religious Symbols
• 9. Raising Children in Accordance with Unorthodox Religious Beliefs
• Index
• Copyright Page