Q: How many Supreme Court Justices does it take to perform the Wednesbury doctrine’s burial rites? A: More than five

Twelve years ago, the Court of Appeal said—in R (Association of British Civilian Internees (Far East Region)) v Secretary of State for Defence [2003] EWCA Civ 473—that, given its perceived deficiencies when viewed alongside the proportionality doctrine, it was difficult to see ‘what justification there now is for retaining the Wednesbury test’. However, said the Court of Appeal of Wednesbury, ‘it is not for this court to perform its burial rites’. Nor, it would appear, is it for a five-Justice Supreme Court to do so, at least according to this week’s decision of that Court in Keyu v Secretary of State for Foreign and Commonweawlth Affairs [2015] UKSC 69. The issue at stake in Keyu is helpfully summarised in the following terms in the press statement accompanying the judgment:

This appeal concerns the decision of the respondent Secretaries of State for Foreign Affairs and Defence to refuse to hold a public inquiry into events which took place while the UK was the colonial power in the former Federation of Malaya (now Malaysia). The UK government sent troops to the Federation in 1948 in response to an insurgency. On 11–12 December 1948, a patrol of Scots Guards killed 23 unarmed civilians in the village of Batang Kali in Selangor, one of the states of the Federation. The Appellants are related to one or more of the victims.

Much of the case turned upon the whether the refusal to hold an inquiry was unlawful by reference to Article 2 of the European Convention on Human Rights or at common law by virtue of the incorporation of relevant principles of customary international law. For reasons that this post does not consider, both of those arguments failed. The other strand of the appellants’ argument was to the effect that the refusal was unlawful as a matter of domestic law, on the ground that it amounted to an abuse of the discretion that section 1 of the Inquiries Act 2005 confers upon Ministers to establish public inquiries into matters of ‘public concern’. Continue reading “Q: How many Supreme Court Justices does it take to perform the Wednesbury doctrine’s burial rites? A: More than five”

Judicial Power in Normative, Institutional and Doctrinal Perspective: A Response to Professor Finnis

The following is a response to Professor John Finnis’s recent lecture on judicial power. Professor Finnis’s lecture, and this response, form part of Policy Exchange’s Judicial Power Project. The following response was first published on the Judicial Power Project’s website and is reproduced here with permission. 

Professor John Finnis’s lecture on judicial power, part of Policy Exchange’s Judicial Power Project, is as stimulating as it is provocative. Judicial decisions and doctrines that stand at the forefront of contemporary public law are castigated: the seminal Belmarsh Prison case is a “shipwreck”; the Supreme Court’s recent decision in Evans is so “extravagantly Procrustean” as to conflate the rule of law and the rule of judges; curial deployment of the proportionality doctrine merely serves as cover for accountability-free judicial legislation. These arguments are powerfully advanced; but their uncompromising nature ultimately serves, at least to some extent, to undermine them.

In this response, I argue that Finnis is insufficiently attentive to three crucial matters — concerning normative, institutional and doctrinal considerations — that ought to inform analysis of both the proper limits of judicial power and the extent to which judicial practice is respectful of those limits. I will also argue that while it is helpful to distinguish between these three issues, the distinctions between them are necessarily porous. None of what follows should be interpreted as supportive of judicial supremacism or as dismissive of the need for vigilance regarding the scope of judicial authority. Rather, the central concern of this piece is to address the nature of the debate concerning judicial power, and to consider the extent to which Finnis’s analysis adequately engages with the essential components of that debate. I do not therefore set out to prescribe different answers from those arrived at by Finnis (although I do disagree, as will be at least implicit, with some of his conclusions). Rather, I argue in favour of a mode of analysis that is more open to the contestability of the normative issues in play; that takes greater account of the way in which underlying normative questions may play out differently in different institutional contexts; and which is more attentive to the doctrinal reality of judicial practice.

In advocating such an approach, I acknowledge that there are inevitably limits to the degree of detail into which a lecture such as Finnis’s can go. However, since my concern is, at least in part, with the nature of the debate concerning judicial power, I focus in this piece on Finnis’s lecture itself (as distinct from other aspects of his work) as a contribution to that debate. Continue reading “Judicial Power in Normative, Institutional and Doctrinal Perspective: A Response to Professor Finnis”

The Ministerial Code and International Law

I have been following an interesting debate on Twitter, triggered in part by this recent post, concerning the amendment of the Ministerial Code. Until earlier this month, the Code said in paragraph 1.2:

The Ministerial Code should be read alongside the Coalition agreement and the background of the overarching duty on Ministers to comply with the law including international law and treaty obligations and to uphold the administration of justice and to protect the integrity of public life

Now paragraph 1.2 says:

The Ministerial Code should be read against the background of the overarching duty on Ministers to comply with the law and to protect the integrity of public life.

The new version thus makes no reference to any obligation upon Ministers to comply with international law (including the UK’s treaty obligations). The Cabinet Office says that it is, in effect, merely saving words: “The code is very clear on the duty that it places on ministers to comply with the law. ‘Comply with the law’ includes international law.” However, this stretches credibility: against the background of the Conservative Party’s 2014 policy document concerning the European Convention on Human Rights, which said that the Ministerial Code would be redrafted “to remove any ambiguity in the current rules about the duty of ministers to follow the will of Parliament in the UK”, it is tolerably clear that the recent change to the Code is about more than simply economical drafting. This prompts three comments.  Continue reading “The Ministerial Code and International Law”

Philippe Sands’ Elson Lecture: Britain, Europe and Human Rights

I briefly wrote yesterday about John Finnis’ recent lecture on judicial power. Although Finnis examines his topic through a lens that takes in far more than simply questions about human-rights protection, some of his fire is trained upon the European Convention on Human Rights and what it requires, or has been understood to require, courts to do. Indeed, by arguing that

it is not wise to require or permit judges to exercise the essentially non-judicial responsibility of overriding or even of condemning legislation for its not being “necessary”, or for its “disproportionality”, relative to open-ended rights and the needs of a democratic society

Finnis calls into question core aspects of the approach adopted by the Strasbourg regime — and hence by UK courts applying the Human Rights Act — to the task of human-rights adjudication.

Against this background, Philippe Sands’ recent Elson Ethics Lecture, entitled “Britain, Europe and Human Rights — Where Next?”, forms a useful counterpoint to the perspective offered by Finnis. No-one who read the powerful piece — “In Defence of Rights” — that Sands co-wrote with Helena Kennedy in the London Review of Books in 2013 will be surprised by the line taken by Sands in his Eldon Lecture. Nevertheless, it is a valuable contribution that situates the case for a pan-European human-rights system in its historical context, in particular by showing how it has its roots in the pathbreaking work of Sir Hersch Lauterpacht. As Sands explains:

Published in the summer of 1945, exactly seven decades ago, Lauterpacht’s An International Bill of the Rights of Man confronted prevailing orthodoxies and contributed to a transformation of our international legal order. The importance of this visionary, seminal, transformative work can scarcely be overstated. Written over three years, as war raged, it set out a vision of an international legal order that would give legal life to Winston Churchill’s political aspiration for “the enthronement of the rights of man”. Lauterpacht’s new model placed the protection of the individual human being, rather than the nation state, at the centre of the international legal landscape. He hoped, in his words, to end “the omnipotence of the state”. In its place he imagined a new era in which “the individual human being – his welfare and the freedom of his personality in its manifold manifestations – is the ultimate unit of all law”. [Footnotes omitted]

This places in sharp focus questions about the extent to which basic human rights can and should be conceived of as innate and universal as distinct from constructs whose content and extent ought to be shaped purely by domestic law. It also forms part of a wider debate — highlighted by the dropping from the Ministerial Code of any explicit requirement that Ministers obey international law — about the place of the UK within, and the attitude of the UK towards, the international legal order.

Taken together, Finnis’s and Sands’ lectures provide a fascinating insight into the breadth of the debate that is now approaching the political centre-stage concerning the relationships between domestic and international law,  the European and domestic judicatures, and judicial and political authority.

Finnis on Judicial Power

John Finnis delivered a stimulating and provocative lecture earlier this week on the subject of “Judicial Power: Past, Present and Future”. The lecture forms part of Policy Exchange’s Judicial Power Project, which is being led by Richard Ekins and Graham Gee of the Universities of Oxford and Sheffield respectively. In a lecture that was — significantly, no doubt — introduced by Justice Secretary and Lord Chancellor Michael Gove, Finnis subjects a number of recent high-profile public-law judgments — including Belmarsh, Nicklinson and Evans — to withering criticism.

The lecture is thus a riposte to what Ekins and Gee, in a post introducing their project, refer to as “an expansive, adventurous understanding of judicial power” that is today shared by “[m]any in the academy and the legal profession” and which calls into doubt the “good sense” embodied in the separation-of-powers doctrine. Thus, for instance, Ekins and Gee assert that in the Evans case the majority in the Supreme Court were “wrong” to intervene by way of quashing the Attorney-General’s use of the governmental veto power in the Freedom of Information Act 2000. (I do not agree, for the reasons given in my recent article in Public Law on Evans.)

Ekins and Gee do, however, concede that the questions with which their project is concerned “are difficult ones about which reasonable minds can and do often disagree”. I am pleased, therefore, to have been invited to write a response to Finnis’s lecture which will be published on the Judicial Power website in the next couple of weeks. In the meantime, I strongly recommend the lecture to anyone who is interested in the discussion about the proper extent of judicial power. It is, unsurprisingly, an extremely thoughtful and powerful piece of work, and one that articulates and defends an understanding of the judicial role that has been somewhat eclipsed in recent years by the emergence of a new orthodoxy. Whether that new orthodoxy is in fact as heterodox as Finnis argues is another matter — and one that I will address in my response.

1,000 words: The Rule of Law

As a phrase, the “rule of law” is a powerful rhetorical device. To condemn something as being “contrary to the rule of law” amounts to strong criticism. However, at least in popular discourse, the term is used loosely. This reflects two respects in which the rule of law, as a matter of both legal theory and constitutional reality, is both uncertain and contested. First, what is it that makes something contrary to the rule of law — in other words, what does the rule of law in the first place require? And, second, if something is contrary to the rule of law, what are the consequences of this? These questions boil down to asking what the rule of law is and what it doesContinue reading “1,000 words: The Rule of Law”

RightsInfo: What are Human Rights?

RightsInfo, which is setting a very high bar indeed in terms of the visual explanation of human-rights-related issues, has just launched an excellent two-minute animation on human-rights basics. If you want to know what human rights are and are looking for an accessible way in, it’s a great starting-point. Of course, the points made in the animation don’t establish that the principal texts to which it refers — the European Convention on Human Rights and the UK’s Human Rights Act 1998 — are perfect. Nor does the animation (in my view at least) deliver a knock-out argument against the repeal of the 1998 Act or the UK’s withdrawal from the ECHR. It does, however, set out in simple, clear terms what those human-rights instruments do, and conveys a sense of what is placed at stake by the Government’s official stance, according to which the HRA is to be replaced by a British Bill of Rights the terms of which might precipitate the UK’s exit from the ECHR. A great deal more can — and will — be said about these proposals if and when they acquire a concrete form. In the meantime, it’s hard to think of a more accessible pro-rights scene-setter than RightsInfo’s latest effort.