The original newspaper article entitled, “Detective accused of taking bribes from Russian exiles. Police investigating the alleged sale to a security company of intelligence on the Kremlin’s attempts to extradite opponents of President Putin, Michael Gillard reports” resulted in a lawsuit for libel against the newspaper for the print and online publications of the article.

The EWCA overturned the Queen’s Bench decision that held in 2009 that the Times could rely on the Reynolds defence for qualified privilege. This defence was originally established over a decade ago by the House of Lords in another case involving journalists at the Times Newspaper for potentially libelous statements in a political discussion: Reynolds v. Times Newspaper Ltd. [1999] 3 All ER 961 (“Reynolds”). The Reynolds defence allows a journalist to raise this defence by proving qualified privilege based on ten criteria:

1. The seriousness of the allegations
2. The nature of the information and the extent to which the subject matter is a matter of public concern
3. The reliability and motivation of the sources of information
4. The steps taken to verify the information
5. The status of the information
6. The urgency of the matter
7. Whether comment was sought from the claimants
8. Whether the article contains the claimants’ side of the story
9. The tone of the article
10. Other circumstances

After prior judicial affirmation, most notably, by Jameel v. Wall Street Journal Europe [2006] UKHL 44, the application of this test has now come into question as a result of the EWCA decision in Flood. The EWCA in Flood applied the Reynolds defence to conclude that the defendant did not meet each criterion, namely, that “the journalists do not seem to have done much to satisfy themselves that the allegations were true” when they wrote the article. The allegations were “no more than unsubstantiated, unchecked accusations from an unknown source coupled with speculation.” Amid the “serious allegation of crime or professional misconduct” the article ultimately constituted irresponsible journalism. Others suggest the narrowing of the application of the Reynolds defence by raising the standard of journalistic verification.

Equally concerned for its reputation, the Times is now appealing this decision to the UK Supreme Court. The Times application claims that the EWCA misapplied the criteria of the Reynolds defence and that the decision is irreconcilable with other judicial applications of the same test. In response, some commentators lament that “Reynolds is dead,” while the Times wants the UK Supreme Court to settle the issue to bring this case in line with prior UK jurisprudence and to bring back professionalism as a defence to aid journalists in the reporting of sensitive news.

Speaking of reporting sensitive news, Maclean’s “Too Asian” article has come across from recent scrutiny in Canada for “irresponsible” journalism for being “Too Brazen.” As mentioned in a previous edition of Amici Curiae here at The Court, Canada’s national weekly news magazine, Maclean’s Magazine recently published an article expressing concern about Canadian university campuses enrolling a high population of Asian students. It would be interesting to test if hypothetically whether the Maclean’s article would pass all ten criteria of the UK Reynold’s test in the Canadian news context.

Judicial History

Prior to the FC decision, Amazon succeeded over ten years ago at the regulatory level when the U.S. Patent Examiner’s Office granted two American patents for the applicant’s “one-click” business method. Amazon then tried and failed to patent the same concept in Canada.

Amazon appealed to the FC an earlier decision by the Canadian Commissioner of Patents (the “Commissioner”) that denied the US-based multinational electronic commerce company a patent for a single mouse click— dubbed a “one-click” business method for the purchase of online items.

Last month, the Court concluded that business methods are patentable in Canada as The Commissioner’s decision was quashed by the FC and sent back down for expediated re-examination.  In suggesting patentable rights for this business method, the FC considered Amazon‘s monopoly rights over a one-click business method, which would allow Amazon to sue other users for patent infringement. This decision therefore has pressing implications (excuse the pun) for internet e-commerce— a massive industry based on millions of clicks per day.

Is Internet Shopping a Patentable Invention?

Over ten years ago, Amazon applied to the Canadian Patent Examiner (the “Examiner”) to patent an invention entitled “Method and System for Placing a Purchase Order via a Communication Network.” It had already claimed priority on two similar American patents. Amazon’s patent application described the usual process of “internet shopping:”

The customer visits a website, enters address and payment information and is given an identifier stored in a “cookie” in their computer. A “server” (a computer system operating a commercial website) is able to recognize the “client” (customer computer with the identifying cookie) and recall the purchasing information which is now stored in the vendor’s computer system. The customer can thus purchase an item with a “single click” – the order is made without the need to ‘check out’ or enter any more information.

After a lengthy process, Amazon’s patent application was rejected by the Examiner on June 1, 2004 on the basis of “obviousness” and “non-patentable subject matter.” On March 4, 2009, on appeal, the Commissioner rejected the Examiner’s findings on obviousness, but upheld the second part of the decision regarding non-patentable subject matter. It cited s.2 of the Patent Act that defines a patentable “invention” as “any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter.” Unperturbed by the sting of Canadian patent rejections, Amazon appealed to the FC.

What Everyone Else Decided

Like the patent regulators, the FC also reviewed statutory subject matter available for patents under the Patent Act. In reaching a decision to overturn the Commissioner’s findings, Justice Phelan for the FC concluded that a “business method” is a patentable subject matter that allows a patent to be issued in appropriate circumstances.

The FC was wary of this as a novel case. In analysing the Commissioner’s decision, Justice Phalen criticized her application of foreign jurisprudence, especially the British statute. Justice Phalen also remarked that “the language used in the American and Canadian [Patent] Acts to describe patentable subject-matter is almost identical.” He referred to British, European and Australian judicial approaches as lacking a “technical test” that points mostly to a “horribly imprecise concept” that “lacks authority in Canada for a ‘business method exclusion.” Nevertheless, the Court was persuaded by the fact that this invention was found to be patentable subject matter in other jurisdictions particularly in the United States and Europe. The Court further noted that “the practical application requirement ensures that something which is a mere idea or discovery is not patented— it must be concrete and tangible.” As such, the Court was driven by a “practical application” requirement despite a lack of established jurisprudence on the matter in Canada.

Narrowing the Definition of “Patentable” Subject Matter

A “practical application” requirement is troubling because the FC did not consider an in-depth analysis of policy considerations, particularly for a potential floodgate of innocuous user-technology-interactions to be granted patent protection. Technological inventions consist of both concrete and abstract processes occurring inside a computer information system and the free-flowing nature of the internet. It’s almost absurd that a single-mouse click is the “concrete and tangible” aspect of the patent under consideration. This conclusion forgoes the practicality of clicking a mouse on a website as a required actions ranging from simple web-surfing to actual purchases conducted online.

In light of other open-ended jurisprudence, such as Bilski, Canadian courts seem just as confused about how to approach “business method patents,” especially when these inventions involve processes intertwined with technology. Instead of leaving the common law courts to speculate about a legislative exclusion, it would have been safer in my opinion to hold off granting a business method patent until a clearer Canadian test is established. What may be required is legislative reform to provide additional clarity about how abstract inventions such as “business methods” narrow an overly broad definition of patentable subject-matter.

SCC’s Torstar Corp. involved Canada’s largest daily newspaper, the Toronto Star and its reporter being sued for libel under the tort of defamation. Peter Grant, a golf course developer took offence to an article entitled, “Slicing through the rules: Genesis of a land deal – How [former Ontario Conservative Party premier Mike] Harris’ friends overcame fish habitat controls to build their dream.”  The article criticized a proposed private golf course development for its environmental impact and behind the scenes political influence. Torstar Corp. worked its way up to the SCC when the trial court rejected the possibility of an “expanded qualified privilege defence based on a concept of public interest responsible journalism.” The Court of Appeal then overturned the trial decision on a procedural matter that left a question of law about a new “responsible journalism defence” to the jury. The case then arrived at the SCC to decide the nature of a new defence for journalists. After much deliberation, the SCC expanded a new qualified privilege defence, dubbed the “defence of responsible communication,” that seeks to protect the public interest while allowing for defenses of truth and fair comment from going too far by allowing journalists with a carte blanche to write unfounded statements without limits in the name of this new defence.

The debate for journalistic press freedom continues across the pond in the UK. This year, the England and Wales Court of Appeal (Civil Division) (“EWCA”) released British Chiropractic Association v. Dr. Singh [2010] EWCA Civ 350 (“BCA v. Dr. Singh”) where a defence for responsible journalism suffered from non-existence, but succeeded on the basis of a clarified defence of fair comment.

What’s the difference between fact and honest opinion anyway?

In this case, the British Chiropractic Association (“BCA”), a British medical association consisting of a membership of chiropractic professionals, took offence to science journalist Dr. Simon Singh’s article entitled “Beware the Spinal Trap” published in a UK national daily newspaper, The Guardian where he was employed. His article, featured in the “Comment and Debate” section, aimed criticism at the BCA particularly in the following passage:

The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.

At issue in this case was whether Dr. Singh’s assertions were based on fact and therefore consisted of fair comment. The elements for the defence of fair comment to succeed require the defendant to show that the offending statement amount to an opinion that was honestly held and based on verifiable, true facts. As a science writer, the notion of fact floated to the surface. In separating the definition of fact and comment, the EWCA considered the alleged defamatory words as to “what they actually mean” and then compared it whether it “has crossed the boundary of reasonableness.”

Fair comment “decayed” with imprecision

Lord Judge, Lord Chief Justice of England and Wales considered the fact that BCA sued Dr. Singh and not The Guardian, a prominent British newspaper for which the article was produced. The EWCA noted this as a clear intention by BCA to silence one of its critics, rather than attack the nature of the publication itself. With this in mind, the court embarked upon its analysis by differentiating “matters of verifiable fact” from comment, asking: was there evidence to support Dr. Singh’s alleged material claims?

It is one thing to defame somebody in terms which can only be defended by proving their truth, even if this ineluctably casts the court in the role of historian or investigative journalist. It is another thing to evaluate published material as giving no evidential support to a claim and, on the basis of this evaluation, to denounce as irresponsible those who make the claim. Recent years have seen a small number of high-profile libel cases in which the courts, however reluctantly, have had to discharge the first of these functions.

The EWCA then went on to analyse the meanings of the word words “not jot of evidence,” “bogus,” and “happily” to conclude that fact and comment could not be precisely delineated:

Our decision does not seek to collapse or erode the general distinction between fact and comment: it seeks to relate the distinction to the subject-matter and context of the particular article and the dispute to which it relates.

The EWCA ruled in favour of Singh by dismissing the lower court’s reasoning:

…the [lower court] judge erred in his approach to the need for justification by treating the statement that there was not a jot of evidence to support the BCA’s claims as an assertion of fact. It was in our judgment a statement of opinion, and one backed by reasons.

Dr. Singh won his appeal and the judgement closed with what can be interpreted as a clarification of the application of the defence in the UK:

…fair comment may have come to ‘decay with … imprecision.’ ‘Honest opinion’ [however] better reflects the realities.

Consequently, this case clarifies the defence of fair comment as not simply requiring proof of an “honest opinion.” The defendant must show that an honest opinion was reasonably made based on verifiable facts. As such, this ruling can provide persuasive support to Canada’s defence of responsible journalism that protects future allegations of defamation against journalists. Journalistic press freedom may have drifted off the mark that today ought to be protected by factual truths, limited from unbridled defamatory statements, and in support of freedom to express honest opinions in published material.

Troubling implications for journalistic press freedom

Two weeks after Singh won his appeal, the BCA issued a press release stating that it dropped this lawsuit against him. However, following the costly rigours of litigation, the implications of defamation lawsuits against journalists continue beyond the courtroom’s legal debate as Singh is reported to have since left The Guardian. It is also a reminder of the power of SLAPP (“Strategic Lawsuits Against Public Participation”) where a litigant brings a lawsuit without necessarily the expectation of winning a case— it uses the threat of actual litigation as a means to silence criticism.

In my opinion, these post-trial results in the UK indicates the dangers of lawsuits that may make journalists weary of liability that subsequently undermines their sense of press freedom. This is compounded by the risk of unemployment at media outlets by the simple threat or actual legal proceeding, regardless of the outcome. Thankfully, based on the outcome of this case, private organizational interests did not weigh heavier in the judge’s mind than publishing verifiable material facts mixed with opinion and supported by a refreshed defence of fair comment. Canada previously opened its doors slightly wider than UK’s BCA v. Dr. Singh with defamation reform led last year by SCC’s Torstar Corp., yet given that our jurisprudence quotes widely from British legal developments, this UK case could have positive implications for a more precise application of fair comment Canada that upholds the “defence for responsible communication.” Responsible journalists, including this writer at The Court, can only hope that creating and upholding Canada’s new responsible journalism defence in favour of freedom of expression will continue to protect future reasonable commentary by journalists on a wide variety of media platforms— including this one!

Britain has over 7,000 publicly financed religious schools. Under the Equality Act of 2006, such schools are allowed to give preference in busy years to applicants of the school’s own faith, using criteria determined by a designated religious authority. The Jew’s Free School (JFS), a religious Jewish school, traditionally receives far more applicants than it accepts. The school’s present policy is to give priority to children who are recognized as Jewish by the Office of the Chief Rabbi (OCR).

M is the child of a father who is Jewish by birth, and a mother who underwent the Progressive Jewish conversion process. That process is not recognized by the OCR who requires conversion take place through the Orthodox Jewish procedure. As such, since Orthodox Judaism only recognizes a child as Jewish if his mother is Jewish, and according to Orthodox Judaism the mother never properly “converted”, M was not regarded as Jewish and his application was denied.

M’s father E alleges the refusal to admit M to a school because his mother is not Jewish constitutes direct race discrimination against him, on the ground of both his and his mother’s ethnicity. JFS defends its action, stating that the criterion used to select students is purely religious and not ethnic in nature. At trial, the High Court of Justice agreed. The Court of Appeal overturned that ruling, on the basis that the admissions test was ethnic in nature and thus discriminatory. Since the test concerned the status of M’s mother rather that M’s personal religious practice, the test could not be said to be purely religious.

Comments

The court’s ruling reveals several problematic issues. To begin with, there is considerable unease with the court’s foray into the religious realm. As Lord Sacks wrote following the court’s decision:

“An English court has declared this rule racist, and since this is an essential element of Jewish law, it is in effect declaring Judaism racist. To be told now that Judaism is racist is distressing. To confuse religion and race is a mistake.”

 Under Orthodox Jewish belief, one’s religious practices are largely irrelevant to their Jewish identity. As Rabbi Yitzchak Shochet famously said, “having a ham sandwich on the afternoon of Yom Kippur doesn’t make you less Jewish”. Conversely, one can be most devout of faith, but if not born Jewish (or “properly” converted) one would not be perceived as such by the Orthodox community. Ethnicity and the Orthodox faith are inextricably intertwined, and the court’s attempt to separate ethnicity and religious practice inherently misunderstands the relationship between the two.

Be that as it may, the argument is made –not without footing– that the private religious laws must yield when there is an adverse impact on social welfare. The problem is the Court of Appeals’ conclusion that the admission criterion was an ethnic test is simply untenable. The first difficulty is understanding what ethnicity means. The Court of Appeal, when attempting to define what constitutes racial discrimination, refers to the House of Lords decision Mandla v. Dowell-Lee, [1983] 2 AC 548. In that case, Lord Fraser notes that an ethnic group is defined as a distinct community sharing certain characteristics. He goes on to state that a group is defined by shared characteristics, and membership in such a group is also open to members joining through a conversion process. Following that reasoning, the Court of Appeal concludes that (a) Jews constitute a racial group defined by ethnic origin and additionally by conversion and (b) to discriminate against a person on the ground that he or someone else is not Jewish is to discriminate on racial grounds.

Two points are relevant here. First, the court conveniently does not take notice of the following line from Mandla:

Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is, for the purposes of the Act, a member.

The very issue of the case at hand is that the group (the Orthodox Jewish community) had not accepted M’s mother into the group by virtue of the wrong conversion process. Second, to discriminate on ethnic or racial grounds implies an almost immutable, or constructively immutable, characteristic that serves as the basis of the discrimination.  In contrast, if M’s mother had undergone the Orthodox conversion process, she would have been recognized as Jewish. There was nothing inherently “ethnic” in the decision; rather, it was the practice which formed the basis for inclusion in the group. The conversion process itself is an inherently religious practice, rather than ethnic.  A possible response is that focusing on the mother’s actions rather than M’s means that the criterion is not religious in nature. Yet, were JFS to deny a child admission on the grounds his or her parents were born Jewish but did not practice religiously, can it be said that the decision would be “ethnic” rather than religious? My point is solely that the OCR took issue not with identity, but with the practice of converting Progressive rather than Orthodox; as such, the issue goes to religion rather than ethnicity. In the alternative, the two are so deeply intertwined that any religious criterion is by definition discriminatory.

A further response is that, by accepting the government’s money, JFS’ admissions policy became a social policy rather than a religious policy. If a school disliked the conditions associated with funding, it would be free to operate privately and determine their own admissions policy. That being said, it is important to examine the social goals the government is advancing. The Secretary of State for Education is intervening on behalf of the respondents, JFS, to argue that a faith-based admission criterion pursues a legitimate aim. The underlying policy purpose is to add to the diversity of choice for parents, and to enable children to be educated within the State sector in accordance with the values of their faith. Since such criterion are the only way to further that purpose, finding them discriminatory would take away from this social purpose. Additionally, Parliament has implicitly endorsed this practice through the enactment of the Equality Act of 2006, despite its potentially discriminatory effects. Accordingly, the appropriate balancing of competing social interests should be a matter for Parliament to decide, rather than the courts. The faith-based admission criterion at issue, therefore, in fact supports sound social policy rather than running contrary to it.

Comparative Law

A similar case occurred during the late 1980s in the Netherlands. In the Maimonides case, the Hoge Raad (the highest civil law court) accepted that an Orthodox Jewish school could exclude a boy from a non-religious family because it was based on consistent policy directly related to the religious foundation of the school. It would seem that a “religious” but non-Jewish individual could also be excluded because it doesn’t fit within the religious foundation of the school.

In Canada, the courts have been prepared to value religious rights over certain other social policy concerns. In Dhillon v. British Columbia, [1999] B.C.H.R.T.D. No. 25, for example, the court held the religious rights of Sikhs to wear a turban trumps other safety concerns behind the helmet laws at issue. The fact that most religious education is not eligible for public funding (see Adler v. Ontario, 1996 CanLII 148 (S.C.C.)) largely prevents the issue from arising. If such an issue did arise, legislation similar to the Equality Act of 2006 would likely be held to infringe s. 15 because religion has been held to be a constructively immutable ground (as in Corbriere v. Canada, [1999] 2 S.C.R. 203.) While the Secretary of State points to an important policy objective, it is doubtful in the Canadian context whether similar legislation would constitute a minimal impairment under the proportionality test of s. 1.

Conclusion

If the newly minted Supreme Court is looking to make its mark, it has such an opportunity when it releases judgment on this case. I, for one, am curious to see which direction the Court will choose to take: whether it will sit back and largely defer to Parliament’s social policy objectives, or whether it will try to carve out the appropriate spheres religion plays in society. The clash between different religious conceptions is almost always inevitable. In Canada, we pride ourselves on a widely diverse culture that is willing to accept a broad spectrum of beliefs. In the quest to increase inclusiveness, however, we inevitably run up against religions that by definition are exclusive. By granting equality with one hand, consequently we take away autonomy with the other. Canada –as with much of the world– watches this case with bated breath.

A striking difference between the CRA and the Supreme Court Act, R.S.C. 1985, c. S-26, is how vacancies on the Supreme Courts are filled. The preliminary qualifications are roughly comparable: in Canada, prospective appointees must be (or have been) superior court judges or lawyers of at least 10 years call, while in the UK persons must have held judicial office for at least 2 years or have been a qualifying practitioner for at least 15 years. All Canadian justices are appointed by the Governor in Counsel; similarly, in the UK the Prime Minister recommends candidates which Her Majesty appoints through letters patent. As Canadian readers are likely well aware, all remaining issues involving the selection process and substantive qualifications of prospective judges are matters of political discretion, and accordingly subject to whim of the government of the day. Not so in the UK: the Prime Minister must recommend any person whose name is put forward by the Lord Chancellor and may not recommend any other person. The Lord Chancellor, in turn, is bound to put forward the name recommended by a selection commission. The Lord Chancellor retains only the discretion to send a selection back for reconsideration by the committee, if he or she believes there is insufficient evidence that the person is suitable for the position or if there is evidence the person is not the best candidate on merit.

For Supreme Court vacancies, the selection commission consists of the President and Deputy President of the Court, and one member from each of the three regional judicial selection committees. Similar to Canada, the UK Act displays a concern for regionalism: should the President and/or Deputy President be absent, then the commission shall ensure one each of the most senior judges representing England and Wales, Scotland, and Northern Ireland shall sit on the committee. While the Lord Chancellor technically appoints which three members of the judicial selection committees shall sit on the Supreme Court selection commission, the Lord Chancellor is bound only to appoint persons recommended by the respective committees the members are drawn from. Interestingly, the statute proscribes that at least one member must be non-legally qualified –i.e. have never held judicial office disqualifying him or her from running for Parliament, and have never been a practicing lawyer.

The commission sets its own selection process, bound only to consult the Lord Chancellor and the chief regional politicians, along with the most senior judge of the courts of a region if a member of the judiciary from that region is not on the commission. It seems trite, but the CRAsets out that commission members are ineligible to be selected themselves. The commission must have regard to any guidance given by the Lord Chancellor as to matters to be taken into account in making a selection; the statutory criteria to consider are that the selection “must be on merit” must “ensure that between them the judges will have knowledge of, and experience of practice in, the law of each part of the United Kingdom.”

In many respects, this process is not necessarily any more transparent or accountable than leaving selection in the hands of the executive. This is not a bad thing. A potential jurist’s background, innate biases, and personal value preferences should not be relevant to the appropriateness of their appointment provided that candidate can take up the mantle of neutrality the post requires. Some may argue the public and Parliament should have a right to examine a candidate for high judicial office’s philosophical and legal background before the appointment is confirmed. I submit, however, that exercises of partisan questions and guarded answers reveals little about distinguished candidates that their record (particularly should the candidate already be a justice) does not. All such proceedings do is offer the potential for a dog-and-pony show by politicians looking to score political points by proving the executive is appointing someone who is either ideologically unpalatable or an universal paragon of neutrality, wisdom, and common-sense (depending on which side of the floor said politicians happen to be inhabiting).

As mentioned previously, it would be difficult to take issue with the most recent jurist to join the Supreme Court of Canada, Mr. Justice Cromwell. The differences between his appointment and the process used to vet the previous Court appointee (Mr. Justice Rothstein), however, illustrate the potential vagrancies of the current Canadian appointments process. The CRA removes such partisan politics from the appointments process, and hands the tough job of selecting new top jurists to a panel of neutral legal professionals (and one distinguished outsider). In particular, including sitting members of the Supreme Court in the appointments process enables the commission to consider gifted jurists, lawyers, and academics who possess particular experience in fields the Supreme Court wishes to supplement regardless of that candidate’s political acceptability. The UK has chosen to place the focus of the appointments inquiry into what qualities would best serve the bench as opposed to those that will pass Parliamentary muster. Assessing “merit” is not a straightforward task; to pervert an oft-quoted saying by a member of another Supreme Court, it is perhaps most recognizable when it is generally accepted.  Another parallel can be drawn: when assessing notoriously unquantifiable qualities, it is better to rely on clear, neutral processes than partisan assessments, gut instinct, and personal preference.  The UK legislation seeks to do just that; Canadian law makers would do well to take note.

In his first speech to the House of Commons as Prime Minister, Gordon Brown called for a radical and far-reaching conversation on the democratic future of the United Kingdom. The speech was unprecedented for a serving prime minister since it suggested a possible route map towards a written constitution. It would, said Brown, be a “fundamental and historic shift” to move away from our “largely unwritten constitution” and introduce a “full British Bill of Rights and Duties.” The ambitious government paper which accompanied the speech was therefore described as a “first step” towards a sustained national debate, involving not just the political parties, but people from “all the nations and regions of this country.”

It is unclear as yet how the government will conduct the proposed debate. But what is clear is that reform is long overdue. Britain’s over-centralized state is antiquated and out-of-date. The much vaunted “flexibility” offered by Britain’s unwritten constitution, has, in recent years, permitted an ever greater concentration of power in the hands of the executive, and the gradual erosion of civil liberties, now accelerated in the name of a “war on terror.” These undemocratic developments, alongside a manifestly unfair electoral system, have contributed to historic levels of public disengagement, with turnout at the last two general elections hovering at around 60%.

A recent example serves to illustrate the hazards inherent in relying on an unwritten constitution. In the last days of the Blair government, the Home Secretary arbitrarily announced the creation of a new “Ministry of Justice” with responsibility for the courts, prisons, probation, criminal law, sentencing and constitutional affairs. The judiciary voiced strong concerns that its independence was threatened since this handed responsibility for judicial administration to a department clearly lodged within the executive camp. Hitherto, responsibility for upholding judicial independence had belonged to the ancient office of the Lord Chancellor, who sat as a peer in the House of Lords and acted as a bridge between the executive and the judiciary. Although the new Minister of Justice is under statutory obligation to uphold the integrity and independence of the judiciary, is this really possible when the same minister has added responsibility for prisons and probation? Since the changes, the judiciary has been demanding a ring-fenced budget for the courts, something the government is unwilling to provide. One would have thought that such a bold reform would be governed by established rules and principles, or that it would at least require extensive consultation and parliamentary debate. Instead, it was announced in late-March, and implemented just six weeks later. The case for a written constitution which clearly defines the relationships between parliament, the executive and the judiciary seems clear.

What chance is there of Britain getting a democratic written constitution fit for the 21^st century? Although it is far from certain whether this is what Brown intends, the indications are that he recognizes the need for a coherent “new constitutional settlement” to restore trust in a political system that suffers from disengagement, and to build a clear sense of British national identity and purpose.

Unlike Blair, Brown is seen as an intellectually serious politician whose engagement with the constitutional agenda is long-standing. In 1992, Brown delivered an important lecture for Charter 88, a group established during the Thatcher years to campaign for a written constitution. In his lecture, Brown called for a “decisive shift in the balance of power in Britain…from an ancient and indefensible Crown sovereignty to a modern and popular sovereignty.” There are additional signs that others high-up in the Labour party have also begun to favour a written constitution. In an early scoop, Our Kingdom broke the news that MP Jack Straw had been converted to the idea. (As Minister of Justice under Brown, Straw has now been put in charge of overseeing constitutional reform.) Further, in what seems like clear evidence of a shift away from traditional Labour thinking, four out of six candidates for the deputy leadership of the party recently declared themselves in favour of a written constitution. Support for a written constitution seems to be high among the public, as well. When asked in a recent poll whether “Britain needs a written constitution providing clear legal rules within which government ministers and civil servants are forced to operate,” 68% per cent agreed.

Not surprisingly, Brown’s opponents have questioned his motives. Some have dismissed his proposals as a cynical attempt to give Brown a facade of democratic legitimacy as an unelected Scot ruling over the English. Others have condemned the proposals as a doomed attempt to hold together the crumbling imperial British state as it is torn apart by the nationalist forces unleashed since devolution. But there are signs that the opposition parties may be willing to support a transformative democratic agenda. Although the Tories have not taken a firm stand on the written constitution issue, under the leadership of David Cameron, they have been enthusiastic supporters of direct democracy and the ‘localist’ idea of devolving as much power as possible from the centre. And the Liberal Democrats, who, as the “third party,” traditionally show the most enthusiasm for constitutional reform, recently proposed that the government establish a convention to work on a written constitution, with 50 per cent of the convention’s members randomly selected by lot from the public.

If a constitutional convention is established, it is likely that Westminster, the “mother of all parliaments,” would draw on the experience of her more democratic offspring. Canadian models for engaging citizens on constitutional issues are frequently mentioned. Here at Our Kingdom, we are keeping a close eye on recent Citizens’ Assembly initiatives in Ontario and British Columbia.

And that’s where we’re at right now: exploring ways of arriving at a written constitution which may – or may not – be in the cards. Will the constitution be merely descriptive of the out-dated system that we already have, or transformative in bringing British democracy into the 21^st century? Well, that’s another question. However, one thing seems certain: it’s an exciting time for democrats in the UK and there’s still everything to play for.

The House of Lords is the upper house of the British Parliament, and it consists of the Lords Spiritual and the Lords Temporal. The former are staffed with various senior religious figures, including archbishops and bishops of the Church of England. The latter includes 92 hereditary peers (as is governed by the House of Lords Act 1999) and around 610 life peers. Roughly 30 of these life peers act as Lords of Appeals in Ordinary (commonly known as Law Lords), and it is they who perform the judicial function that we’re so familiar with. Since the House of Lords is a house of parliament, many of its members have political party allegiances. But of course, to maintain judicial independence, the Law Lords typically do not debate in the House.

The actual room itself is magnificently splendid. The head of the room holds an immensely decorated throne, with gilded golden decorations and intricate designs. Down the sides of the room are rows of plush, crimson benches where the Lords sit during their debates. Notably, there are fewer seats than there are Lords, presumably built for the fact that most do not show up for all meetings. Down the main aisle of the chamber, there are also seats for Lords that are not affiliated with any party –this is where the Law Lords would sit should they attend. As my words clearly do not do this magnificent room justice, here’s a link to a picture of the hall.

If it seems odd that a house of parliament would have both legislative and a judicial role, the UK House of Commons has duly noted this and has instituted changes to more clearly demarcate the line between the two functions. With the Constitutional Reform Act 2005, the judicial function of the House of Lords will be separated out into a Supreme Court of the UK, which will be instituted in 2009. This move has naturally raised some furor in those who consider it to be devaluing an important and venerable aspect of the institution. Without going into the details, I’ll just offer a link to a policy paper on the need of a UK Supreme Court.

With so many common law precedents stemming from this institution still in force in Canada, I consider myself very fortunate to have had the opportunity to visit this place. With changes in the near future, new judicial decisions from the House of Lords will be a thing of the past. Though this has no direct implication on Canadian law, and the reasons for the change are fairly clear, it is nevertheless somewhat sad to see this piece of our heritage give way.