27 June 2008

Comment: Cicero, Stuart Wheeler and the legal enforcement of political manifesti

Cicero is famous for many things, including the briefest, yet most complete and precise, explanation of what law is and how it works: ubi remedium ibi ius. A literal translation is "where remedy there right"; something more user-friendly would be "where there is a remedy, there is a right". And indeed if you think you have a particular right, but on inspection you discover you don't have a remedy for a breach thereof, then you are the possessor of an oxymoron which is also a nullity or non-entity: an unenforceable right. In the modern age, of things like fundamental human rights and international law, where natural law is seen as a better theory of law relative to horrible old-fashioned positivism, Cicero's maxim has undergone some modernization and is sometimes seen in the form ubi ius ibi remedium: "where there is a right, there is a remedy". To some minds the original formulation is rather more to the point. It is perhaps a curiosity that, even for "natural" laws, in those cases where human and international rights have enforceable remedies, it seems that those remedies are nonetheless founded on positivistic devices (statutes, treaties) and enforced by positivistic entities (courts, armies), exercising real power. The theory of natural law finds those facts an inconvenient difficulty.

The proof of the original formulation ubi remedium ibi ius is witnessed in myriad ways every day, though of course some cases are more interesting than others. The case of Stuart Wheeler against the UK government was heard at the Royal Courts of Justice on 9 and 10 June 2008. His case, a judicial review of the non-referendum concerning the Lisbon Treaty, argued that he had a "legitimate expectation" that there would be such a referendum, given earlier indications to that effect from the government (and incidentally also from the two other main parties). The High Court did not agree. Before giving his judgement (with Mr Justice Mackay on 25 June 2008), Lord Justice Richards had said he was "surprised" that the government was proceeding with ratification before the High Court had ruled on whether or not there should be a referendum. In brief historic context, the Lisbon Treaty followed the non-ratification of the European Constitution of 2004.

Mr Wheeler has said that he wants to take the matter further. In that event the one certainty is that Cicero will once again be proved correct: in order to prove the existence of a right, it is necessary first to prove that the remedy exists. In other words, Mr Wheeler has so far discovered that he has an unenforceable right. And Mr Wheeler is always going to have the difficulty that the Lisbon Treaty and Constitutional Treaty are, in fact, two different documents.

I am in no way an expert in judicial review and, apart from perhaps understanding the words, I offer no analysis of the specialized, public-law expression "legitimate expectation". "Legitimate expectation" may itself be a concise version of or mean something like "an expectation susceptible to legal enforcement", which is not entirely the same thing. Peter Gibson LJ has given the definition of "a legitimate expectation, in the sense of an expectation which will be protected by law": R v Secretary of State for Education and Employment, ex p Begbie [2000] 1 WLR 1115 (CA).

Whether or not the Mr Wheeler's case goes any further, does it follow that a political manifesto could never be enforceable? What if a political party wanted to make its manifesto, or perhaps just discrete, concrete parts of it, contractually enforceable? Whatever happens to the Wheeler case, it may have ramifications in public law but it is unlikely to affect the law of contract. I am unaware of any law that says that politicians or their parties are forbidden from using the law of contract in a political context, or at least that is the case as to relations between UK politicians and UK registered voters. If, however, some snippet of electoral law does prohibit the sort of contract I propose, then the conclusion would be that, accidentally or deliberately, the political class had rendered itself legally incapable of making a proper electoral contract. A brief look at things like the Representation of the People Act 1985, the Political Parties, Elections and Referendums Act 2000 and the Representation of the People (England and Wales) Regulations 2001/341 has revealed no difficulties immediately obvious to me. Could it be argued that the sort of contract I propose could be a corrupt or illegal practice? Is it somehow against public policy for a politican to make an enforceable promise?

The basics of the law of contract: freedom of contract, intention to create legal relations, certainty

The essence of freedom of contract is very simple: any person is free to make a contract with any other person. A person may be corporate or individual, the contract may be about anything, and provided the contract is itself lawful and not otherwise against public policy, and provided the contracting parties are not prohibited from the contract (eg unlawful trading with an enemy during war) then pretty much anything goes. That is why it is called "freedom of contract".

When Courts come across documents which do not call themselves contracts, such as "memorandum of agreement", "gentlemans' agreements", "letters of comfort", or whatever document one may imagine, which may look like a contract but does not call itself one, they employ the useful idea of trying to assess whether there was an intention to create legal relations. If so, then the document is enforceable provided it is sufficiently clear or certain what it does.

For certainty is indeed a necessary pre-condition for a contract to exist. Even something which calls itself a contract, but is insufficiently clear as to the rights and duties of the parties, may find itself in a fight for legal survival (at least as to the uncertain parts).

A contract must also be supported by consideration (eg an explicit quid pro quo), but that is not a difficulty of any description.

A contractual manifesto

In a great commercial city like London any number of serious enforceable contracts are created, and recorded on paper, every day. There is no reason in principle why a political manifesto should not be one of them. It should not be beyond the drafter of any manifesto to introduce contractual elements if so desired. Freedom of contract tells us that political parties, or individual politicians, are capable of entering into legal relations with any other person. Indeed those same political parties and politicians are no doubt already party to numerous binding contracts, for things like leases, utilities etc.

The issue of intention to create legal relations is easily dealt with: the contractual manifesto states, in terms, that it is a contract (or which parts are contractual and which are not) and that there is an intention to create legal relations between the parties as to the designated contractual elements of it. To ensure that there are in fact parties to the manifesto, some suitable representatives of the electorate could be asked to countersign it (the party or politician in question having already signed it). If the political party made the manifesto publicly available for signature, then the chances are the electoral signatories would include at least some people who would be the type to sue the government (if the party gained power).

The principal drafting difficulty is, as ever, certainty. I see no way to contractualize the vague, sweeping, optimistic, visionary aspects of a partisan manifesto. Nor should they be contractual. They are not specific promises, rather general expressions of intent. But what of a specific, concrete policy? Certainly there are many political policies which are simple to describe in contractual terms and easy for a new government to do quickly or within a clearly stated time. Such policies are reducible to contract.

Numerous things could be posited: what about the motorway speed limit? That may be changed by statutory instrument. A statutory instrument is a piece of A4 with some legal content, signed by a minister. And in this way any government is able to do many things, and bring changes to statutory law, without amending primary legislation (Acts of Parliament). This is because the fiddly and often not particularly important or political stuff may be changed by statutory instrument (and primary legislation states which parts of it may be changed by SI).

In other words, a manifesto could promise to change the speed limit (to a certain figure), within a certain time of taking office (24 hours? 100 days?) and could further state that it was a contractual promise. I would add briefly that a contractual manifesto would also have to state that it was subject to specific enforcement, an expression which needs no explanation. Otherwse a successful litigant could obtain (say) a symbolic award of damages for breach of contract and nothing else.

I mention the speed limit because it is easy to be clear about it and the policy itself could be easily executed - no need for any doubt as to the ability of a government to do it and to do it quickly. But, in principle, any policy capable of clear and certain expression, with a promise to perform within a certain time, is susceptible to being rendered contractual.

The result of such a document, combined with the party in question taking power, would be clear legal rights, exercisable by the electoral signatories (or any one of them), to obtain an order for specific performance against the new government in relation to any contractual default: ubi remedium ibi ius. As interesting as the Wheeler case may be, it is perhaps a distraction from the broader point that any political party should be capable of offering a contractually binding manifesto, at least as to clear and specific elements of it; and whatever the result of the case, but in particularly if the Court of Appeal upholds the prior decision, are any politicians going to offer to fix the problem, if they perceive it to be one, that their election promises are not easily enforceable.

Summary

Mr Wheeler has a difficult job because politicians do not make contracts with the electorate; but they could if they wanted to. Administrative (public) law will always recognise the formal difference between the Constitutional and Lisbon Treaties; their political content is not justiciable. His case is nonetheless important in that it will clarify or add to the law concerning representations made by politicians and when such representations do, or do not, create enforceable legitimate expectations recognised by public law.

(c) Andrew McGuinness 2008

Related links

European Constitutional Treaty of 2004 - official text
Lisbon Treaty - official text
R v Office of the Prime Minister & anor [2008] EWHC 936 (Admin)" - judgement (2 May 2008) of Mr Justice Owen giving permission for judicial review
EU Observer - "UK millionaire's Lisbon Treaty challenge defeated"
Telegraph - "Stuart Wheeler loses EU Lisbon Treaty court case"
BBC - "Wheeler to appeal over referendum"
R v Office of the Prime Minister & anor [2008] EWHC 1409 (Admin) - judgement (25 June 2008) of LJ Richards and Mackay J


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