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Dialogue isn't working: the case for collaboration as a model of legislative–judicial relations

Published online by Cambridge University Press:  02 January 2018

Eoin Carolan
Eoin Carolan*
Affiliation:
University College Dublin
*
Eoin Carolan, Sutherland School of Law, University College Dublin, Belfield, Dublin, Ireland. Email: eoin.carolan@ucd.ie
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Abstract

In the past two decades, it has become commonplace for legislative–judicial engagement on contested constitutional questions to be described as a dialogue. This paper argues that the time has come to abandon the notion of dialogue. The first part of the paper describes the difficulties with dialogue theories. Despite the existence of many different versions, these theories share certain constitutionally problematic characteristics. Dialogue theories promote a view of government that is unrealistic, susceptible to normative bias and that overlooks the critical importance of disagreement and institutional differences to a system of democratic government based on the rule of law. The second part of the paper argues that Christopher Ansell's idea of collaboration-as-fruitful-conflict provides a more descriptively and normatively appropriate account of the relationship between the legal and political branches of government.

Type
Research Article
Information
Legal Studies , Volume 36 , Issue 2 , June 2016 , pp. 209 - 229
Copyright
Copyright © Society of Legal Scholars 2016

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Footnotes

*

I am very grateful to Gavin Phillipson and Jeff King for their helpful comments on early ideas for this paper, and to the anonymous reviewers for their detailed comments on the first draft.

References

1. Hogg, P and Bushell, A ‘The Charter dialogue between courts and legislatures (or perhaps the Charter of Rights isn't such a bad thing after all)’ (1997) 35(1) Osgoode Hall L J 75.Google Scholar

2. See eg Allan, TRS ‘Constitutional dialogue and the justification of judicial review’ (2003) 23 (4) Oxford J Legal Stud 563 CrossRefGoogle Scholar; Hickman, T ’Constitutional dialogue, constitutional theories and the Human Rights Act 1998’ [2005] Pub L 306 Google Scholar; Farrelly, C ‘Civic liberalism and the “dialogue model” of judicial review’ (2006) 25 Law & Phil 489 CrossRefGoogle Scholar; Nicol, D ‘Law and politics after the Human Rights Act’ [2006] Pub L 722 Google Scholar; and, more recently, Yap, P ‘Defending dialogue’ [2012] Pub L 527 Google Scholar; Phillipson, G ‘The Human Rights Act, dialogue and constitutional principles’ (2013) 183 Proc Br Acad 25 Google Scholar; Norton, P ‘A democratic dialogue? Parliament and human rights in the United Kingdom’ (2013) 21 Asia Pac L Rev 141 CrossRefGoogle Scholar; Crawford, C ‘Dialogue and declarations of incompatibility under section 4 of the Human Rights Act 1998’ (2013) 25(1) Denning L J 43 CrossRefGoogle Scholar. The metaphor is also used to describe the interaction between domestic and foreign or supranational courts, which is not considered here.

3. Hogg, P, Bushell Thornton, A & Wright, W ‘Charter dialogue revisited: or “much ado about Metaphors”’ (2007) 45 Osgoode Hall L J 1 at 26.Google Scholar

4. Roach, K The Supreme Court on Trial: Judicial Activism or Democratic Dialogue? (Toronto: Irwin Law, 2001)Google Scholar; Bateup, C ‘The dialogic promise – assessing the normative potential of theories of constitutional dialogue’ (2006) 71 Brook L Rev 1109.Google Scholar

5. Mathen, C ‘Dialogue theory, judicial review, and judicial supremacy: a comment on ‘Charter dialogue revisited’ (2007) 45 Osgoode Hall L J 127.Google Scholar

6. Berger, B ‘Children of two logics: a way into Canadian culture’ (2013) 11 Int'l J Const L 319 at 327.Google Scholar

7. Yap, above n 2, at 528 (original emphasis).

8. Vriend v Alberta [1998] 1 SCR 493 Google Scholar; R v Mills [1999] 3 SCR 668 Google Scholar; Sauve v Canada (Chief Electoral Officer) [2002] 3 SCR 519.Google Scholar

9. Vriend v Alberta [1998] 1 SCR 493, paras 138–139 Google Scholar.

10. See the comprehensive analysis of notions of restraint in King, J ‘Institutional approaches to restraint’ (2008) 28 Oxford J Legal Stud 409.CrossRefGoogle Scholar

11. Stephenson, S ‘Constitutional re-engineering: dialogue's migration from Canada to Australia’ (2013) 11 Int'l J Const L 870.Google Scholar

12. The paper often refers to ‘dialogue’ in a personified form in an effort to make clear when it is the metaphor (rather than a specific more determinate variant of dialogue theory) that is being described.

13. See eg so-called ‘second order’ theories.

14. Notably those associated with the emphasis on a unitary outcome or false consensus.

15. Harel, A and Shinar, A ‘Between judicial and legislative supremacy: a cautious defense of constrained judicial review’ (2012) 10 Int'l J Const L 950 at 957.Google Scholar

16. Meese III, E ‘The law of the constitution’ (1987) 61 Tul L Rev 979.Google Scholar

17. Allan, above n 2, at 573.

18. Hogg and Bushell, above n 1.

19. Roach, above n 4.

20. Fredman, S ‘From dialogue to deliberation: human rights adjudication and prisoners’ rights to vote’ [2013] Pub L 292.Google Scholar

21. See the discussion of these different approaches in Hickman, above n 2; Hickman, T ‘The courts and politics after the Human Rights Act’ [2008] Pub L 84.Google Scholar

22. Harper v Canada [2004] 1 SCR 827 Google Scholar; Dixon, R ‘Weak-form judicial review and American exceptionalism’ (2012) 32 Oxford J Legal Stud 487 CrossRefGoogle Scholar; Davis, F ‘Parliamentary supremacy and the re-invigoration of institutional dialogue in the UK’ (2014) 67 Parl Aff 137.CrossRefGoogle Scholar

23. Chandrachud, C ‘Reconfiguring the discourse on political responses to declarations of incompatibility’ [2014] Pub L 624 at 638.Google Scholar

24. Campbell, T ‘Incorporation through interpretation’ in Campbell, T, Ewing, K and Tomkins, A (eds) Sceptical Essays in Human Rights (Oxford: Oxford University Press, 2001)CrossRefGoogle Scholar, discussed in Hickman, above n 2.

25. Tremblay, L ‘The legitimacy of judicial review: the limits of dialogue between courts and legislatures’ (2005) 3 Int'l J Const L 617 Google Scholar; Fredman, above n 20.

26. Young, A ‘Is dialogue working under the Human Rights Act 1998?’ [2011] Pub L 773 at 774.Google Scholar

27. Tremblay, above n 25, at 619.

28. As of 30 July 2013, 28 declarations of incompatibility had been made under the HRA: fewer than three per year since it came into force. See Ministry of Justice Responding to Human Rights Judgments, Report to the Joint Committee on Human Rights, Cm 8962 (London: HMSO, 2013).Google Scholar

29. Hickman, above n 2, at 326.

30. Phillipson, above n 2, at 41.

31. Hogg and Bushell, above n 1.

32. See evidence of the emergence of such a ‘quasi-judicial’ approach to parliamentary scrutiny in Klug, F and Wildbore, H ‘Breaking new ground: the Joint Committee on Human Rights and the role of Parliament in human rights compliance’ (2007) Eur Hum Rts L Rev 231.Google Scholar

33. See criticisms of legislative responses along such lines in, eg, Fredman, above n 2; Southerden, T ‘Dysfunctional dialogue: lawyers, politicians and immigrants’ rights to private and family life’ (2014) Eur Hum Rts L Rev 252 Google Scholar; Phillipson, above n 2.

34. Southerden, above n 33, at 254.

35. Fredman, above n 20.

36. Southerden, above n 33.

37. Fredman, above n 20, at 296–297 (emphasis added).

38. Ibid, at 294.

39. de Londras, F ‘Declarations of incompatibility under the ECHR Act 2003: a workable transplant?’ (2014) 35 Statute L Rev 50 CrossRefGoogle Scholar; Carolan, E ‘Leaving behind the Commonwealth model of rights review’ in Bell, J and Paris, M-L (eds) Rights-Based Constitutional Review (Cheltenham: Edward Elgar, forthcoming, 2015).Google Scholar

40. Vibert, F The Rise of the Unelected (Cambridge: Cambridge University Press, 2007).CrossRefGoogle Scholar

41. Mashaw, J Creating the Administrative Constitution (New Haven, CT: Yale University Press, 2012).Google Scholar

42. Hogg et al, above n 3; Dixon, R ‘A new theory of Charter dialogue: the Supreme Court of Canada, Charter dialogue and deference’ (2009) 47 Osgoode Hall L J 235.Google Scholar

43. Phillipson, above n 2; Southerden, above n 33.

44. Roach, K ‘Sharpening the dialogue debate: the next decade of scholarship’ (2007) 45 Osgoode Hall L J 169 at 191.Google Scholar

45. This follows from Tremblay's argument that dialogue conceived as mere conversation cannot provide legitimacy in the constitutional context because ‘a dialogue as ‘informal’ conversation has no specific practical purpose, it does not aim at taking a collective decision; reaching agreement; solving problems or conflicts; … or determining together which particular view should govern actions or decisions …. [It[ has no practical outcome to legitimize’: Tremblay, above n 25, at 631.

46. See eg Chandrachud's reference to the ‘promotion of consensus building’ between courts and legislatures as one of the HRA's functions: Chandrachud, above n 23, at 633.

47. McIlwain, C Constitutionalism: Ancient and Modern (Indianapolis, IN: Amagi/Liberty Fund, 2007), pp 128–129.Google Scholar

48. Loughlin, M and Walker, N The Paradox of Constitutionalism (Oxford: Oxford University Press, 2008).CrossRefGoogle Scholar

49. Loughlin, M ‘Constitutional law: the third order of the political’ in Bamforth, N and Leyland, P (eds) Public Law in a Multi-Layered Constitution (Oxford: Hart Publishing, 2003) p 34.Google Scholar

50. Barber, N The Constitutional State (Oxford: Oxford University Press, 2010) esp ch 6.CrossRefGoogle Scholar

51. Mureinik, E ‘A bridge to where? Introducing the Interim Bill of Rights’ (1994) 10 S Afr J Hum Rts 31.Google Scholar

52. Depending on the theory being applied, this could be read as a moral, constitutional or legal standard.

53. King, J ‘Institutional approaches to restraint’ (2008) 28 Oxford J Legal Stud 409.CrossRefGoogle Scholar

54. Clayton, R ‘Judicial deference and “democratic dialogue”: the legitimacy of judicial intervention under the Human Rights Act 1998’ [2004] Pub L 33 at 44 (emphasis added).Google Scholar

55. For the difficulties that this type of approach can create, see the extensive literature on theories of ‘departmentalism’ in the US constitutional jurisprudence. See eg Meese, above n 16; Stokes Paulsen, M ‘The most dangerous branch’ (1994) 83 Geo L J 217 Google Scholar; Cross, F ‘Institutions and enforcement of the Bill of Rights’ (2000) 85 Cornell L Rev 1529 Google Scholar; Johnsen, D ‘Functional departmentalism and nonjudicial interpretation’ (2004) 67 Law & Contemp Probs 105 Google Scholar; Fisher, L Defending Congress and the Constitution (Lawrence, KS: University Press of Kansas, 2011).Google Scholar

56. As opposed to an approach – such as that which the dialogue metaphor can encourage – which, even if it accepts the existence and potential value of distinct perspectives, ultimately aims to resolve them away.

57. Nicol, above n 2, at 743.

58. Allan, above n 2, at 576.

59. Ibid, at 571.

60. Kavanagh, A Constitutional Review under the Human Rights Act (Cambridge: Cambridge University Press, 2009) p 407.Google Scholar

61. Carolan, E The New Separation of Powers (Oxford: Oxford University Press, 2009) ch 7CrossRefGoogle Scholar. That is consistent with the approach advanced in this section, which is an attempt to explore and develop the implications of this view of constitutional government. See also Carolan, E ‘The relationship between judicial remedies and the separation of powers: collaborative constitutionalism and the suspended declaration of invalidity’ (2011) 46 Irish Jurist 180.Google Scholar

62. See the comprehensive analysis of notions of restraint in King, above n 53, at 428.

63. Ansell, C Pragmatist Democracy: Evolutionary Learning as Public Philosophy (Oxford: Oxford University Press, 2011) p 168.CrossRefGoogle Scholar

64. Ibid, at 169.

65. O'Flynn, J ‘The cult of collaboration in public policy’ (2009) 68 Austral J Pub Admin 112 at 114.CrossRefGoogle Scholar

66. Ibid, at 114.

67. Thomson, A, Perry, J and Miller, T ‘Conceptualizing and measuring collaboration’ (2007) 19 J Pub Admin Res & Theory 23 at 23.CrossRefGoogle Scholar

68. Wood, D and Gray, B ‘Towards a comprehensive theory of collaboration’ (1991) J Appl Behav Sci 139 at 143.CrossRefGoogle Scholar

69. Henneman, E, Lee, A and Cohen, J ‘Collaboration: a concept analysis’ (1995) 21 J Adv Nursing 103 at 104.CrossRefGoogle Scholar

70. O'Flynn, above n 65, at 112.

71. Ibid, at 115.

72. Gray, B Collaborating: Finding Common Ground for Multiparty Problems (San Francisco, CA: Jossey-Bass, 1989) p 5.Google Scholar

73. Vangen, S and Huxham, C ‘The tangled web: unravelling and principle of common goals in collaborations’ (2011) 22 J Pub Admin Res & Theory 731 at 731.CrossRefGoogle Scholar

74. Phillipson, above n 2, at 49.

75. Hickman, above n 21, at 96.

76. 384 US 436 (1966).

77. [1994] 3 SCR 63.

78. Roach, K ‘Dialogue or defiance: legislative reversals of Supreme Court decisions in Canada and the United States’ (2006) 4 Int'l J Const L 347 at 357.Google Scholar

79. Title II of the Omnibus Crime Control and Safe Streets Act 1968; Act to Amend the Criminal Code 1995.

80. Vangen and Huxham, above n 73, at 732.

81. There is a separate and legitimate question about whether metaphors, despite their popularity, are apt to assist or mislead.