THE CONSTITUTIONALISATION OF PRIVATE LAW Scotland The Honourable Lord Reed(1) Readers are reminded that this work is protected by copyright While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use I suspect that most students of private law in Scotland would find the title above rather difficult to understand. The reaction of some might be to reflect that Scotland does not have any constitution in the sense in which that expression is used in other countries: in other words, a legal document with some privileged status, guaranteeing fundamental rights. Others might react with the though that constitutional law and private law are quite distinct subjects: when I was an undergraduate at ight by separate dep nts. with wh to me to be different traditions and different habits of thought Constitutional law, after all, was regarded by some as a rather soft-edged subject, concerned to a considerable extent with conventions, traditions and practices which did not constitute law in the same sense as the black letter subjects taught under the aegis of private law. Students I think also tended to regard constitutional law as something that was unlikely to be important to them after they left the university, unless they happened to enter the Civil Service. The position has, however, changed over the past twenty-five years, and it makes sense now to speak of a constitutionalisation of private law in this country, al though this is a process which has been very tentative This process seems to me to have been driven by two main engines, the european Community and the Council of Europe. But it can be related to wider tendencies. Comparative law has become increasingly influential in our courts, and it has encouraged judges to look for common principles underlying different legal systems when developing our domestic law. In a recent Scottish case in the House of Lords, for example, concerned with liability in negligence for pregnancy and childbirth resulting from a failed vasectomy, reference was made in the judgments to the law of the United States, New Zealand, Canada, Australia, France, Germany and the Netherlands. (2)A textbook(3)was also referred to, belonging to a series with the title, The Common Law of Europe Casebooks: a title which in itself epitomises this tendency. Since the other legal systems referred to are, for the most part, ones where private law is developed within a constitutional framework, the growing influence of comparative law results in a tendency towards closer convergence of our legal system with those of countries where rights are constitutionally guaranteed Another relevant development is the growing tendency for domestic legislation in the field of private law to be designed to give effect to international instruments of various kinds, such as the
THE CONSTITUTIONALISATION OF PRIVATE LAW: Scotland The Honourable Lord Reed(1) Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. I suspect that most students of private law in Scotland would find the title above rather difficult to understand. The reaction of some might be to reflect that Scotland does not have any 'constitution', in the sense in which that expression is used in other countries: in other words, a legal document with some privileged status, guaranteeing fundamental rights. Others might react with the thought that constitutional law and private law are quite distinct subjects: when I was an undergraduate at Edinburgh University, for example, they were taught by separate departments, with what seemed to me to be different traditions and different habits of thought. Constitutional law, after all, was regarded by some as a rather soft-edged subject, concerned to a considerable extent with conventions, traditions and practices which did not constitute 'law' in the same sense as the black letter subjects taught under the aegis of private law. Students I think also tended to regard constitutional law as something that was unlikely to be important to them after they left the university, unless they happened to enter the Civil Service. The position has, however, changed over the past twenty-five years, and it makes sense now to speak of a constitutionalisation of private law in this country, although this is a process which has been very tentative. This process seems to me to have been driven by two main engines, the European Community and the Council of Europe. But it can be related to wider tendencies. Comparative law has become increasingly influential in our courts, and it has encouraged judges to look for common principles underlying different legal systems when developing our domestic law. In a recent Scottish case in the House of Lords, for example, concerned with liability in negligence for pregnancy and childbirth resulting from a failed vasectomy, reference was made in the judgments to the law of the United States, New Zealand, Canada, Australia, France, Germany and the Netherlands.(2) A textbook(3) was also referred to, belonging to a series with the title, The Common Law of Europe Casebooks: a title which in itself epitomises this tendency. Since the other legal systems referred to are, for the most part, ones where private law is developed within a constitutional framework, the growing influence of comparative law results in a tendency towards closer convergence of our legal system with those of countries where rights are constitutionally guaranteed. Another relevant development is the growing tendency for domestic legislation in the field of private law to be designed to give effect to international instruments of various kinds, such as the
Berne Copyright Convention and the UN Convention on the Rights of the Child. But by far the most important of these international instruments to the process that I am describing have been the European Community treaties and the European Convention on Human Rights There is no doubt that the closer convergence of European legal systems forms part of the agenda of the European Community. The steps taken to achieve that objective are particularly important because they differ significantly from the tendency which exists in any event for the systems of private law in the European states to become closer. That tendency, over the past twenty-five years or so, has been one based on initiatives taken at national level, responding to social changes which the different European countries have in common. Community law, on the other hand, has sought to achieve convergence through the laying down at European level of laws which are then binding on the member states and have a higher status than law which is domestic in origin In that sense, and also because Community Law prioritises fundamental rights, these European laws can be regarded as having a constitutional status. But this has been a very partial process so far in the field of private law. Although there have been moves to create a European Private Law or indeed a 'European Civil Code, and drafts have been put forward such as the General Principles of Contract Law, the legislative activity of the Community to date has created only isolated areas of uniformity. Examples would be the law of trademark, ( 4) the law concerning commercial agents, (5) the law concerning health and safety at work, (6) and some aspects of company law and employment law The European Convention on Human Rights, on the other hand has had a more generalised influence on private law throughout the Contracting States. From fairly small beginnings, its influence has steadily increased. This can be seen particularly in the areas of family law (in respect of parental rights, childrens rights and illegitimacy, for example)and the law of delict or torts(in respect of defamation and the liability in negligence of public authorities, for example) Although the Convention is an international convention in its legal character, it differs from many other treaties and conventions in a number of ways. In terms of content, it imposes an obligation on Contracting States to safeguard basic rights. Even if it does not have a constitutional status in the traditional sense, it nonetheless has a typically constitutional content. Its incorporation into domestic law is therefore especially significant in a Contracting State such as the United Kingdom whose constitution(in the sense that the United Kingdom can be said to possess one) does not contain any catalogue of basic rights. The institutions of the Convention also set it apart. In articular, the European Court of Human Rights has operated with great self-assurance, expanding the jurisprudence on the Convention through a creative and evolving interpretation of the Convention. In other words, the Court gives the ECHR a content which is not confined by the original intentions of its draftsmen. The Court continuously renews the Convention, in a manner and with an authority which is comparable to constitutional courts in states which have established uch courts. In other words, and speaking very broadly, the Strasbourg Court can be regarded to some extent as performing the role of a European Constitutional Court, so far as fundamental ights are concerned one whose judgments are respected by national jurisdictions and legislatures, and one which has encouraged the tendency of national systems to move closer together
Berne Copyright Convention and the UN Convention on the Rights of the Child. But by far the most important of these international instruments to the process that I am describing have been the European Community treaties and the European Convention on Human Rights. There is no doubt that the closer convergence of European legal systems forms part of the agenda of the European Community. The steps taken to achieve that objective are particularly important because they differ significantly from the tendency which exists in any event for the systems of private law in the European states to become closer. That tendency, over the past twenty-five years or so, has been one based on initiatives taken at national level, responding to social changes which the different European countries have in common. Community law, on the other hand, has sought to achieve convergence through the laying down at European level of laws which are then binding on the member states and have a higher status than law which is domestic in origin. In that sense, and also because Community Law prioritises fundamental rights, these European laws can be regarded as having a constitutional status. But this has been a very partial process so far in the field of private law. Although there have been moves to create a 'European Private Law' or indeed, a 'European Civil Code', and drafts have been put forward such as the 'General Principles of Contract Law', the legislative activity of the Community to date has created only isolated areas of uniformity. Examples would be the law of trademark,(4) the law concerning commercial agents,(5) the law concerning health and safety at work,(6) and some aspects of company law and employment law. The European Convention on Human Rights, on the other hand, has had a more generalised influence on private law throughout the Contracting States. From fairly small beginnings, its influence has steadily increased. This can be seen particularly in the areas of family law (in respect of parental rights, children's rights and illegitimacy, for example) and the law of delict or torts (in respect of defamation and the liability in negligence of public authorities, for example). Although the Convention is an international convention in its legal character, it differs from many other treaties and conventions in a number of ways. In terms of content, it imposes an obligation on Contracting States to safeguard basic rights. Even if it does not have a constitutional status in the traditional sense, it nonetheless has a typically constitutional content. Its incorporation into domestic law is therefore especially significant in a Contracting State such as the United Kingdom, whose constitution (in the sense that the United Kingdom can be said to possess one) does not contain any catalogue of basic rights. The institutions of the Convention also set it apart. In particular, the European Court of Human Rights has operated with great self-assurance, expanding the jurisprudence on the Convention through a creative and evolving interpretation of the Convention. In other words, the Court gives the ECHR a content which is not confined by the original intentions of its draftsmen. The Court continuously renews the Convention, in a manner and with an authority which is comparable to constitutional courts in states which have established such courts. In other words, and speaking very broadly, the Strasbourg Court can be regarded to some extent as performing the role of a European Constitutional Court, so far as fundamental rights are concerned: one whose judgments are respected by national jurisdictions and legislatures, and one which has encouraged the tendency of national systems to move closer together
In the United Kingdom, the application of the Convention has recently been greatly intensified by the Human Rights Act 1998 and the Scotland Act 1998, which incorporated the substantive articles of the Convention into our law and made it incompetent for all public bodies below the level of the Westminster Parliament. the Scottish parliament. and also the courts. to act incompatibly with the Convention. This is a very important development for a number of reasons One is the point I have already mentioned that this is the first time we have had fundamental rights given a special status in our law. If that were as far as the matter went, we might be regarded simply as falling into line with other jurisdictions, such as South Africa, the United States and Canada: an important enough development in all conscience. But the second point I would emphasise is that the Convention is what its name suggests: a European Convention. Its meaning and effect are ultimately determined by an international court whose members are drawn from all the Contracting States, and which is dominated by civilian lawyers. So the Convention is, in that respect, essentially different in its nature from national human rights instruments such as the German Basic law or the Canadian Charter of fundamental rights and freedoms or the Constitution of the United States of America. That has two particular implications. The first is that because the Strasbourg Court reflects the standards prevailing amongst the forty-one Contracting States in interpreting the Convention for the benefit of all those states, it is sometimes necessary to know what the law is in those states in order to decide whether a particular state of affairs is acceptable under the Convention. To put the matter shortly, in order to decide how a Scottish court ought to decide a question under the Convention, one needs to know how the Strasbourg Court would be likely to decide the same question, and in order to know that one sometimes needs to now how the question would be dealt with in a civilian system. A recent decision of the Strasbourg Court concerning the English law of tort for example, (7) caused a degree of consternation amongst lawyers in this country, who had a great deal of difficulty understanding the reasoning on which the Strasbourg decision was based. The decision would not however, have surprised a German lawyer or indeed a lawyer from most of the continental systems, because the decision was in line with their law. Obtaining information about other systems is nevertheless a matter of practical difficulty in our courts, very largely because so few lawyers can understand foreign languages, the materials available in English are very limited, and indeed the ma available in this country in the original languages may also be limited, although the Internet quickly becoming a vital legal tool. It would indeed be timely for the Scots to consider the establishment of an Institute of Comparative Law The international nature of the Convention also has implications for the relationship between law and public opinion, and between the courts and the political process. Because we have had constitutional instrument in this country entrenching fundamental human rights, the legislature has been the primary source of significant legal change. The political process operates within the limitations set by popular democracy; and so reforms which do not command popular support are unlikely to be introduced, unless that is necessary to secure compliance with the Convention Equally, the courts have tried hitherto to interpret legislation in accordance with the intention of Parliament; and they have tried to develop the common law in line with prevailing values, traditionally epitomised for English judges by the man on the Clapham omnibus. The courts have taken that approach in the absence of any official statement of legally prevailing values. We now have such a statement, in the form of the European Convention; and the courts are now required to
In the United Kingdom, the application of the Convention has recently been greatly intensified by the Human Rights Act 1998 and the Scotland Act 1998, which incorporated the substantive articles of the Convention into our law and made it incompetent for all public bodies below the level of the Westminster Parliament, the Scottish Parliament, and also the courts, to act incompatibly with the Convention. This is a very important development for a number of reasons. One is the point I have already mentioned: that this is the first time we have had fundamental rights given a special status in our law. If that were as far as the matter went, we might be regarded simply as falling into line with other jurisdictions, such as South Africa, the United States and Canada: an important enough development in all conscience. But the second point I would emphasise is that the Convention is what its name suggests: a European Convention. Its meaning and effect are ultimately determined by an international court whose members are drawn from all the Contracting States, and which is dominated by civilian lawyers. So the Convention is, in that respect, essentially different in its nature from national human rights instruments such as the German Basic Law or the Canadian Charter of Fundamental Rights and Freedoms or the Constitution of the United States of America. That has two particular implications. The first is that, because the Strasbourg Court reflects the standards prevailing amongst the forty-one Contracting States in interpreting the Convention for the benefit of all those states, it is sometimes necessary to know what the law is in those states in order to decide whether a particular state of affairs is acceptable under the Convention. To put the matter shortly, in order to decide how a Scottish court ought to decide a question under the Convention, one needs to know how the Strasbourg Court would be likely to decide the same question, and in order to know that one sometimes needs to know how the question would be dealt with in a civilian system. A recent decision of the Strasbourg Court concerning the English law of tort for example,(7) caused a degree of consternation amongst lawyers in this country, who had a great deal of difficulty understanding the reasoning on which the Strasbourg decision was based. The decision would not, however, have surprised a German lawyer or indeed a lawyer from most of the continental systems, because the decision was in line with their law. Obtaining information about other systems is nevertheless a matter of practical difficulty in our courts, very largely because so few lawyers can understand foreign languages, the materials available in English are very limited, and indeed the materials available in this country in the original languages may also be limited, although the Internet is quickly becoming a vital legal tool. It would indeed be timely for the Scots to consider the establishment of an Institute of Comparative Law. The international nature of the Convention also has implications for the relationship between the law and public opinion, and between the courts and the political process. Because we have had no constitutional instrument in this country entrenching fundamental human rights, the legislature has been the primary source of significant legal change. The political process operates within the limitations set by popular democracy; and so reforms which do not command popular support are unlikely to be introduced, unless that is necessary to secure compliance with the Convention. Equally, the courts have tried hitherto to interpret legislation in accordance with the intention of Parliament; and they have tried to develop the common law in line with prevailing values, traditionally epitomised for English judges by the man on the Clapham omnibus. The courts have taken that approach in the absence of any official statement of legally prevailing values. We now have such a statement, in the form of the European Convention; and the courts are now required to
apply those values as the touchstone in interpreting legislation and developing the common law Equally, the Scottish Parliament is required to apply those values in legislating. So the courts will now have to develop the law in accordance with the Convention, and the Scottish Parliament will have to reform the law in accordance with the Convention, whether or not any specific legal change would command majority support in a democratically elected Parliament: the issue is hether the change is necessary to give effect to the values expressed, for Europe as a whole, in the e So we are facing a considerable intensification of the process of constitutionalisation of our ate law. Th rise to the various difficult legal and constitutional already identified by Professor Visser in relation to South Africa.( 8) But the process in the United Kingdom seems to me to raise additional issues insofar as it is a European constitutionalisation, rather than a specifically British constitutionalisation. It will intensify the process which is already underway towards the closer convergence of European legal systems Considering the pattern of development of the Scottish legal system, it is important to remember that a legal system is more than an accumulation of solutions to problems: even if two legal systems provided identical solutions to all the most common problems of life, they could nevertheless remain profoundly foreign to each other,s practitioners. What is most distinctive about a legal system, as it seems to me, is the conceptual framework which lawyers use to define and express problems and their solution That framework tends to persist and evolve over a very long period, which is one reason why, in a system which has had a long and continuous history, such as English or Scots law, a lawyer would be likely to find himself more at home in an antiquated textbook from his own legal system than in a current textbook from a foreign legal system. The continuity of institutions, methods of reasoning and modes of rhetoric are important components of a legal system. The Convention tends to focus on solutions to problems, and to some extent on the procedures adopted in ariving at those solutions. The other aspects of the legal system are not, however, immune from the effects of constitutionalisation. The convention requires all the European systems to respect common basic values. It requires certain fundamental concepts to be used in assessing whether there is conformity with those basic values, such as proportionality, legal certainty, and non-discrimination, which have their origins in continental legal systems and which our law is now adopting If our judges wish to avoid giving the impression that they are indulging in social engineering in deciding some of the questions which they will now have to decide, the Convention may also have an influence on the way in which they express their judgments, possibly bringing them closer to the relatively terse and legalistic style characteristic of civilian systems. It will certainly encourage the tendency which is already well established towards the intermixing of European lawyers as students, practitioners and judges, and as participants in academic conferences, something which I think tends to make us realise that we have more in common with each other than we might have thought, and that the differences between our systems may be less important than we might have imagined The title of the textbook series mentioned above, The Common Law of Europe Casebooks, refers to an entity which, in my opinion, does not at present exist. But it does seem to me that we are taking steps in that direction When I was an undergraduate, some of my teachers encouraged us to
apply those values as the touchstone in interpreting legislation and developing the common law. Equally, the Scottish Parliament is required to apply those values in legislating. So the courts will now have to develop the law in accordance with the Convention, and the Scottish Parliament will have to reform the law in accordance with the Convention, whether or not any specific legal change would command majority support in a democratically elected Parliament: the issue is whether the change is necessary to give effect to the values expressed, for Europe as a whole, in the European Convention. So we are facing a considerable intensification of the process of constitutionalisation of our private law. That gives rise to the various difficult legal and constitutional issues already identified by Professor Visser in relation to South Africa.(8) But the process in the United Kingdom seems to me to raise additional issues insofar as it is a European constitutionalisation, rather than a specifically British constitutionalisation. It will intensify the process which is already underway towards the closer convergence of European legal systems. Considering the pattern of development of the Scottish legal system, it is important to remember that a legal system is more than an accumulation of solutions to problems: even if two legal systems provided identical solutions to all the most common problems of life, they could nevertheless remain profoundly foreign to each other's practitioners. What is most distinctive about a legal system, as it seems to me, is the conceptual framework which lawyers use to define and express problems and their solution. That framework tends to persist and evolve over a very long period, which is one reason why, in a system which has had a long and continuous history, such as English or Scots law, a lawyer would be likely to find himself more at home in an antiquated textbook from his own legal system than in a current textbook from a foreign legal system. The continuity of institutions, methods of reasoning and modes of rhetoric are important components of a legal system. The Convention tends to focus on solutions to problems, and to some extent on the procedures adopted in arriving at those solutions. The other aspects of the legal system are not, however, immune from the effects of constitutionalisation. The convention requires all the European systems to respect common basic values. It requires certain fundamental concepts to be used in assessing whether there is conformity with those basic values, such as proportionality, legal certainty, and non-discrimination, which have their origins in continental legal systems and which our law is now adopting. If our judges wish to avoid giving the impression that they are indulging in social engineering in deciding some of the questions which they will now have to decide, the Convention may also have an influence on the way in which they express their judgments, possibly bringing them closer to the relatively terse and legalistic style characteristic of civilian systems. It will certainly encourage the tendency which is already well established towards the intermixing of European lawyers as students, practitioners and judges, and as participants in academic conferences, something which I think tends to make us realise that we have more in common with each other than we might have thought, and that the differences between our systems may be less important than we might have imagined. The title of the textbook series mentioned above, The Common Law of Europe Casebooks, refers to an entity which, in my opinion, does not at present exist. But it does seem to me that we are taking steps in that direction. When I was an undergraduate, some of my teachers encouraged us to
think that Scots law, as a 'mixed' legal system, might have a special role to play in that process The thought was that, as an intermediate system between the common law and the civil law, Scots law could offer concepts which might be useful in offering a middle way. That is not how things are working out. Both within the European Union and the Council of Europe the development seems to me to be towards the creation at a European level of autonomous concepts, influenced primarily by the civilian systems. That is not to say that Scots lawyers cannot play an influential part: one has only to think of the European Court of Justice, and the contribution made by lord Mackenzie-Stuart and Judge Edward, to realise the important role they can play. Indeed it is striking how the Strasbourg and Luxembourg Courts have both been courts in which judges from relatively small jurisdictions, such as Switzerland, Scotland and the Scandinavian countries have been able to play an important part But that, I think is attributable to the personal qualities of the individuals involved, rather than some special qualities of their legal systems. If, in conclusion, I were to venture to predict how Scots law will develop- rather a rash thing to do- the signs at present suggest to me that, just as Scots private law became heavily influenced by English law after 1707, through the process of integration of the United Kingdom, so it and English private law alike are likely to be influenced by Community law and Convention law, and thus indirectly by the civilian systems of Europe, so long as the process of European integration continues 1. Senator of the College of Justice in Scotland (Judge in the Supreme Court) 2. McFarlane v Tayside Health Board, 2000 SC (HL)I 3. W. van Gerven et al., eds, Torts: Scope of Protection(1998) 4. Trade Marks Act 1994 5. Commercial Agents( Council Directive) Regulations 1993. See, e.g., King v T Tunnock Ltd 2000SC424 6. See, e.g., English v North Lanarkshire Council [1999 Eu LR 701 7. Osman v United Kingdom, (1998)20 EHRR 245 8. Keynote paper given by Professor Danie Visser on"The Constitutionalisation of Private Law at the conference Mixed Legal Systems: Patterns of Development, Edinburgh, 8-9 December 2000
think that Scots law, as a 'mixed' legal system, might have a special role to play in that process. The thought was that, as an intermediate system between the common law and the civil law, Scots law could offer concepts which might be useful in offering a middle way. That is not how things are working out. Both within the European Union and the Council of Europe the development seems to me to be towards the creation at a European level of autonomous concepts, influenced primarily by the civilian systems. That is not to say that Scots lawyers cannot play an influential part: one has only to think of the European Court of Justice, and the contribution made by Lord Mackenzie-Stuart and Judge Edward, to realise the important role they can play. Indeed it is striking how the Strasbourg and Luxembourg Courts have both been courts in which judges from relatively small jurisdictions, such as Switzerland, Scotland and the Scandinavian countries have been able to play an important part. But that, I think is attributable to the personal qualities of the individuals involved, rather than some special qualities of their legal systems. If, in conclusion, I were to venture to predict how Scots law will develop - rather a rash thing to do - the signs at present suggest to me that, just as Scots private law became heavily influenced by English law after 1707, through the process of integration of the United Kingdom, so it and English private law alike are likely to be influenced by Community law and Convention law, and thus indirectly by the civilian systems of Europe, so long as the process of European integration continues. -------------------------------------------------------------------------------- Notes 1. Senator of the College of Justice in Scotland (Judge in the Supreme Court). 2. McFarlane v Tayside Health Board, 2000 SC (HL) 1. 3. W. van Gerven et al., eds., Torts: Scope of Protection (1998). 4. Trade Marks Act 1994. 5. Commercial Agents (Council Directive) Regulations 1993. See, e.g., King v T Tunnock Ltd., 2000 SC 424. 6. See, e.g., English v North Lanarkshire Council [1999] Eu LR 701. 7. Osman v United Kingdom, (1998) 20 EHRR 245. 8. Keynote paper given by Professor Danie Visser on 'The Constitutionalisation of Private Law' at the conference 'Mixed Legal Systems: Patterns of Development', Edinburgh, 8-9 December 2000