A constitutional court for the UK? My letter to The Times

In a leading article published on 3 February 2016, The Times offered its support to the notion of establishing a constitutional court for the UK—an idea floated, if only obliquely, by the Justice Secretary Michael Gove. The attraction of a constitutional court, said The Times, is that it would enable the UK to stand up for national values in the face of any European laws that cut across them:

Prime minister’s questions yesterday was never going to be straightforward for David Cameron. He came to parliament accused by his own backbenchers of failing to stand up for Westminster sufficiently robustly in his European renegotiation. One prominent figure, Boris Johnson, gave him a chance to restate his case, and Mr Cameron did his best. Another, Michael Gove, has gone further, floating the idea of a UK constitutional court as a forum for the scrutiny and even rejection of European Union legislation. The idea deserves serious consideration but Mr Cameron failed to mention it. He should have done.

A British constitutional court might help not just to assuage the fears of Mr Johnson and Conservative Eurosceptics. It could help to correct Britain’s unbalanced relationship with Europe more effectively than the draft revisions to our relationship with Brussels published by Donald Tusk, president of the European Council …

The government has had bruising encounters with the European Court of Human Rights over deporting radical prisoners, the right of criminals to family life and prisoner voting. A bill of rights and a constitutional court could help to restore public confidence in the law …

Continue reading “A constitutional court for the UK? My letter to The Times

Youssef: Another Supreme Court decision, another set of obiter dicta on substantive judicial review

Supreme Court judgments addressing—but not resolving—the future direction of substantive judicial review have been coming thick and fast in the last year or two. Notable examples include Kennedy v The Charity Commission [2014] UKSC 20 (on which I posted here), Pham v Secretary of State for the Home Department [2015] UKSC 19 (blog post) and Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 (blog post). To that list can now be added Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 (press summary) (judgment).

The challenge was to the Secretary of State’s decision to allow the appellant to be designated, on the ground of an alleged association with Al-Qaida, by the Sanctions Committee of the United Nations Security Council. Designation triggers the freezing of the person’s assets. The appellant’s claim was dismissed by the Divisional Court and the Court of Appeal. He appealed (unsuccessfully) to the Supreme Court on a number of grounds. Of present concern is the appellant’s contention that the Court of Appeal went wrong by reviewing the decision on rationality grounds, instead of applying a more searching ground of review (such as proportionality) or engaging in ‘full merits review’ of the decision. Continue reading Youssef: Another Supreme Court decision, another set of obiter dicta on substantive judicial review”

Clauses 1 and 2 of the Scotland Bill: Government Response to House of Lords Constitution Committee

I have written in previous posts about the Scotland Bill and, in particular, the possible constitutional implications—including for the doctrine of parliamentary sovereignty—of clauses 1 and 2 of the Bill, which respectively concern the ‘permanence’ of the Scottish Parliament and Government and the Sewel Convention. As noted in a previous post, the House of Lords Constitution Committee drew attention to these matters in its recent report on the Scotland Bill. The Government has now issued a response to the Committee’s report which has been published on the Committee’s website. Continue reading “Clauses 1 and 2 of the Scotland Bill: Government Response to House of Lords Constitution Committee”

The House of Lords and secondary legislation: Some initial thoughts on the Strathclyde Review

The Strathclyde Review, which was prompted by the House of Lords’ opposition to secondary legislation on tax credits, has been published. Its recommendation is straightforward: that the House of Lords’ powers in respect of statutory instruments (which is the form taken by the majority of secondary legislation) should be brought broadly into line with its powers, under the Parliament Acts 1911–49, in respect of primary legislation. The upshot, if the Strathclyde recommendation were implemented, would be that the House of Lords would lose its power to veto statutory instruments, any attempt by the Lords to block a statutory instrument being vulnerable to the exercise by the House of Commons of an override power. As with primary legislation, the Lords would be able to require the Commons to think again, but it would not wield any veto power. (In one respect, however, the Lords’ powers in relation to statutory instruments will be even more limited than their powers in respect of primary legislation: whereas the Parliament Acts enable the Lords to hold up primary legislation for one year, Strathclyde proposes no fixed period of delay in relation to statutory instruments rejected by the Lords.)

On the face of it, this proposal is disarmingly attractive: it would produce a superficially pleasing symmetry as between the positions that obtain in relation to Acts of Parliament and statutory instruments, in turn taking to their apparently logical conclusion concerns—relating to the two chambers’ relative democratic legitimacy—that underpin their already different powers in relation to primary legislation. However, the position is not as straightforward as this analysis—or the Strathclyde Review, which attempts to leverage such an analysis—implies. In this post, I outline three salient matters pertaining to statutory instruments, and, in the light of those matters, advance three arguments against the Strathclyde proposal. Continue reading “The House of Lords and secondary legislation: Some initial thoughts on the Strathclyde Review”

Declarations, quashing orders and declaratory judgments: The Hawke case and section 84 of the Criminal Justice and Courts Act 2015

Under Chris Grayling’s stewardship of the Ministry of Justice, the view took hold—ample evidence to the contrary notwithstanding—that too many claims for judicial review were being initiated, and that judicial review was being used abusively for ‘political’ purposes. One of the ill-conceived ideas that grew out of this unfounded notion was that courts should be required to withhold relief in judicial-review proceedings in certain circumstances, so as to address the perceived problem of ‘time and money [being] wasted in dealing with unmeritorious cases which may be brought simply to generate publicity or to delay implementation of a decision that was properly made’.

The new statutory provisions

New provisions were thus inserted into section 31 of the Senior Courts Act 1981 (‘SCA’) by section 84 of the Criminal Justice and Courts Act 2015.

Section 31(2A)–(2C) of the SCA now provides as follows:

(2A)  The High Court—

(a)  must refuse to grant relief on an application for judicial review, and

(b)  may not make an award under subsection (4) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

(2B)  The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.

(2C)  If the court grants relief or makes an award in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied.

Section 31(3C)–(3F) makes similar provision in respect of the withholding of permission to seek judicial review in the first place. Continue reading “Declarations, quashing orders and declaratory judgments: The Hawke case and section 84 of the Criminal Justice and Courts Act 2015″

Ekins and Forsyth on Evans: A Brief Response

As part of Policy Exchange’s Judicial Power Project, Richard Ekins and Christopher Forsyth have published a trenchant critique of the Supreme Court’s judgment in Evans, concerning the lawfulness of the Government’s decision to veto disclosure of Prince Charles’s correspondence with Ministers under the Freedom of Information Act 2000. I published my own analysis of Evans in Public Law in October, and I will not attempt to rehearse it here. Instead, I simply draw attention to (and question) the way in which Ekins and Forsyth characterise my position. They write that I have

speculated that a legislative response to Evans might well prompt the courts to assert the authority to invalidate the legislation, which they might consider contrary to the rule of law. (A handful of judges in some recent cases have suggested that such a power might exist.) The speculation seems to us ungrounded. If the Supreme Court were to act thus it would be asserting an authority over Parliament that is flatly ruled out by our constitutional tradition: an assertion of judicial supremacy of this kind would be a coup not a judgment.

Ekins and Forsyth’s characterisation of my position is presumably based on the following excerpt from my blog post on Evans:

Not all judges—not all Supreme Court judges—accept that interpretive protection of fundamental constitutional norms is as far as the courts may legitimately go. Of course, such judges almost invariably accompany dicta touching upon the possibility of judicial disobedience to constitutionally suspect legislation with lavishly extravagant examples such as a full-frontal assault upon the basic tenets of democracy or the evisceration of the courts’ powers of judicial review. However, it occurs to me that if, as has been hinted today by the Prime Minister, section 53(2) of the Freedom of Information Act were redrafted so as to attempt to confer wide powers of Ministerial override of judicial decisions, such a provision might plausibly be considered to fall into that category—if it exists at all—of legislation so constitutionally egregious as to test the courts’ commitment to the absolute supremacy of Parliament. The very fact that courts clothe judgments such as Evans in the conceptual apparatus of interpretation demonstrates that they are certainly not spoiling for a fight such as this. Far from it. But Evans—and the broader stream of recent jurisprudence that places common-law constitutionalism front-and-centre—suggests that it would be a complacent Government that took the outcome of such a confrontation with the judges entirely for granted.

I accept that I engage in speculation, but I question Ekins and Forsyth’s characterisation of what I am speculating about and their assertion that such speculation is unwarranted (or ‘ungrounded’). These two matters are related. Continue reading “Ekins and Forsyth on Evans: A Brief Response”

The UK Supreme Court as a constitutional ‘longstop’: Michael Gove’s evidence to the House of Lords Constitution Committee

The Lord Chancellor and Justice Secretary, Michael Gove, gave evidence to the House of Lords Constitution Committee earlier today. In this brief post, I pick up on just one of the issues raised by his evidence, namely the notion that the UK Supreme Court might be made, by a British Bill of Rights, into what Gove called a ‘constitutional longstop’ court—a constitutional court, in other words. This builds to some extent on the ill-defined notion, advanced by Gove’s predecessor, Chris Grayling, of ‘making the UK Supreme Court supreme’. However, I have pointed out before that this notion was always more about reducing the power of ‘Europe’ than augmenting the power of British judges, and that still seems to be the case. In particular, Gove appears to envisage not that the Supreme Court should be given power to override Acts of Parliament that conflict with fundamental constitutional values or principles—which is what one would normally expect of a ‘constitutional court’—but rather that the UK Supreme Court, in newly constitutional guise, should be equipped by a British Bill of Rights to stand up to European Union law. It may well be that Gove envisages something similar in respect of the European Convention on Human Rights, but since it was EU law—and, in particular, the EU Charter of Fundamental Rights that he appeared to have in his sights when making these remarks—I will focus in what follows on the EU side of things.  Continue reading “The UK Supreme Court as a constitutional ‘longstop’: Michael Gove’s evidence to the House of Lords Constitution Committee”