What a (for now failed) attempt to curb judicial review tells us about the UK’s constitution

Over the last couple of weeks, I have been teaching new Constitutional Law students in Cambridge about the fundamental, architectural aspects of the UK constitution, including the rule of law, the separation of powers and the sovereignty of Parliament. The House of Lords’ rejection earlier this week of parts of a Government Bill that aimed restrict the availability of judicial review of executive action is an excellent example of the way in which these principles interact.

Part 4 of the Criminal Justice and Courts Bill, in the form in which it was approved by the House of Commons, would have made it more difficult, in certain circumstances, for courts to scrutinse government action in order to determine its lawfulness. I have written before (here and here) about some of the intended limitations, and there is an excellent summary of this week’s House of Lords debate, and analysis of its implications, on the UK Human Rights Blog. However, it is the fact that the government and House of Commons have sought to introduce significant limitations upon judicial review, rather than the precise nature or effect those limitations, with which I am concerned in this post. I argue that this episode illuminates three key issues relating to the UK constitution.

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Beyond Sark: The implications of the Barclay case

Although at one level astonishingly complex, the issues at stake in R (Barclay) v Secretary of State for Justice (No 2) [2014] UKSC 54 (press summary) (judgment) can be stated relatively simply for the purpose of seeking to understand its broader significance. Article 6 of the European Convention on Human Rights requires, among other things, judicial independence and impartiality. In Barclay (No 2), it was argued that the office of Chief Judge of Sark, one of the Channel Islands, failed to comply with Article 6.

Recently enacted local legislation, making provision in relation to the office of Chief Judge, formed the subject-matter of the challenge. Predecessor legislation had already been considered in earlier litigation (culminating in R (Barclay) v Secretary of State for Justice (No 1) [2009] UKSC 9). The challenge to the new legislation failed in the UK Supreme Court, not on the ground that the human-rights argument was without merit, but because the question should have been resolved by local courts rather than by the courts of England and Wales or by the UK Supreme Court. It would be inappropriate, the Supreme Court held, for UK courts (a term that will be used to include both the courts of England and Wales and the UK Supreme Court) to address this matter in Barclay (No 2), and it had been wrong for them to do so in Barclay (No 1).

These issues may appear to be highly technical and of little relevance beyond the specific context of the Channel Islands. However, the significance of the Barclay judgment is considerably greater than that. This post will explain and comment on the two key issues that arose in Barclay (No 2) — namely, whether UK courts had jurisdiction to consider the matter; and, if they did, whether they should have exercised such jurisdiction.

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1,000 words: Parliamentary sovereignty

On the surface, at least, parliamentary sovereignty — a phenomenon that applies to the UK, or Westminster, Parliament, but not to the UK’s devolved legislatures — is a simple concept. To paraphrase Dicey, Parliament has the legal authority to enact, amend or repeal any law, and no-one has the legal authority to stop it from doing so. But this notion is as extravagant as it is simple: it means, as Stephen famously put it, that a law directing the killing of all blue-eyed babies would be valid. The fact that such laws remain unenacted is thanks to “political constitutionalism” as opposed to “legal constitutionalism”: it is political, not legal, factors — including, one hopes, legislators’ own sense of morality — that operate as the restraining force.

It is often assumed that the sovereignty of Parliament follows from the absence in the United Kingdom of a written constitution, the existence of such constitutions generally being associated with legislatures that have only limited powers. Within such legal systems, the written constitution usually performs two functions (which are in truth flip sides of one coin) that rule out anything like parliamentary sovereignty. The constitution confers authority on the legislature; and the constitution restricts the legislature’s authority (by omitting to confer the power to do certain things). Within this type of constitutional framework, the legislature only has those (limited) powers that the constitution grants: and if the legislature attempts to make laws beyond the powers granted to it, then (often) courts can intervene by quashing unconstitutional legislation (or simply refusing to apply it, on the ground that it is not really “law”).

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My analysis of the Conservative Party’s proposals for a British Bill of Rights

I wrote earlier this week about David Cameron’s announcement at the Conservative Party conference that a future Tory government would repeal the Human Rights Act 1998 and replace it with a British Bill of Rights. Cameron gave very little away in his speech, but more detailed proposals — although not yet a draft Bill — have now been published.

If implemented, the proposed changes — contained in a Conservative Party (not a Government) paper entitled Protecting Human Rights in the UK — would yield very significant changes. No mere rebranding exercise, the Conservatives’ Bill of Rights would significantly limit domestic courts’ powers relative to those they have under the Human Rights Act, and reshape — as a matter of domestic law — the influence of the European Convention on Human Rights.

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David Cameron

David Cameron promises a “British Bill of Rights”. And what, exactly, does that mean?

In his speech to the Conservative Party conference today, David Cameron spoke — albeit in very general terms — about human-rights reform. Here is the entirely of what he said on this subject:

Of course, it’s not just the European Union that needs sorting out – it’s the European Court of Human Rights. When that charter was written, in the aftermath of the Second World War, it set out the basic rights we should respect. But since then, interpretations of that charter have led to a whole lot of things that are frankly wrong. Rulings to stop us deporting suspected terrorists. The suggestion that you’ve got to apply the human rights convention even on the battle-fields of Helmand. And now – they want to give prisoners the vote.

I’m sorry, I just don’t agree. Our Parliament – the British Parliament – decided they shouldn’t have that right. This is the country that wrote Magna Carta … the country that time and again has stood up for human rights …  whether liberating Europe from fascism or leading the charge today against sexual violence in war.

Let me put this very clearly: We do not require instruction on this from judges in Strasbourg. So at long last, with a Conservative Government after the next election, this country will have a new British Bill of Rights to be passed in our Parliament, rooted in our values … and as for Labour’s Human Rights Act? We will scrap it, once and for all.

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The astonishingly low standard of Human Rights Act bashing

Last week, I came across — and briefly joined in — an astonishing exchange on Twitter concerning repeal of the Human Rights Act 1998. It was prompted by a report that former Attorney-General Dominic Grieve anticipates that, in his Conservative Party conference speech this week, David Cameron will announce plans to dilute the UK’s commitment to upholding the European Convention on Human Rights. (That the Conservatives will adopt such plans at some point seems inevitable; indeed, Grieve’s sacking was clearly intended to pave the way for this.)

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Bogdanor on “English votes for English laws”: A response

In his recent trenchant piece in The Guardian, Vernon Bogdanor argues that “English votes for English laws” — a possible response to the West Lothian Question — would be a “logical absurdity”:

English votes for English laws seems at first sight a logical response to the English Question. But it is in fact incoherent. It means that whenever a government depended on Scottish MPs for its majority, as could occur if Labour were narrowly elected in 2015, there would be a UK majority – Labour – for non-devolved matters such as foreign affairs and economics, but an alternative majority for devolved matters. But a bifurcated government is a logical absurdity. A government must be collectively responsible to parliament for all the policies that come before it, not just a selection of them.

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