The House of Lords Constitution Committee published its report earlier today on the Jobseekers (Back to Work Schemes) Bill. (Professor Adam Tomkins has drawn attention to this issue on his blog, and has promised a longer post on the subject in due course.)
The background to the Bill is formed by the Court of Appeal’s recent decision in R (Reilly and Wilson) v Secretary of State for Work and Pensions [2013] EWCA Civ 66, in which certain regulations concerning entitlement to benefits were struck down. New secondary legislation has already been made in order to fill the legal gap left by the quashing of the old regulations, but the new rules operate only prospectively. What, then, about people who were sanctioned improperly (i.e. by reference to the old, invalid rules)?
Normally, when a court quashes administrative acts or secondary legislation, the effect is to render (or, more accurately, confirm) that the measures are void ab initio (i.e. legally ineffective “from the very beginning”). So those who were sanctioned under the old rules were treated unlawfully, and are entitled to be paid the benefits they were improperly denied. But, says the Government, this would cost it £130 million: and so it is inviting Parliament to pass legislation—the Jobseekers (Back to Work Schemes) Bill—which would retrospectively change the law. That is, the Bill would make lawful the denial of benefits to individuals, even though the Court of Appeal ruled that denial to have been unlawful. What this amounts to, therefore, is the Executive using primary legislation to reverse the effect of a judicial decision.
One of the concerns raised by the Constitution Committee relates to the use of a fast-track procedure in order to enact this legislation—the effect of which is to reduce the time for parliamentary scrutiny. Even more fundamental, however, is the other issue raised in the report: namely, the retrospective nature of the legislation. As the Committee notes at para 14 of its report, this
engages the cardinal rule of law principle that individuals may be punished or penalised only for contravening what was at the time a valid legal requirement. According to the doctrine of the sovereignty of Parliament, retrospective legislation is lawful. Nonetheless, from a constitutional point of view it should wherever possible be avoided, since the law should so far as possible be clear, accessible and predictable. This applies to civil penalties as well as criminal offences. In the words of the late Lord Bingham of Cornhill: “If anyone—you or I—is to be penalised it must not be for breaking some rule dreamt up by an ingenious minister or official … It must be for a proven breach of the established law of the land.”
This will not be the first time that a judicial decision has been undone via primary legislation. But that does not detract from the compelling nature of the points raised by the Constitution Committee. At root, this episode calls into question the relationship between the rule of law and the sovereignty of Parliament—and in this context it is worth reminding oneself that not all judges today accept that the latter necessarily prevails over the former. For example, in Jackson v Attorney-General [2005] UKHL 56, Lord Hope said:
Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King [1920] AC 691, 720. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.
Of course, it does not follow from this that the courts would respond to the new legislation by putting Parliament back it its place; such an outcome is highly unlikely. But what this episode does demonstrate is a profound lack of respect by the Executive (which is, inevitably, behind this legislation) for the judicial branch of Government. That lack of respect is evidenced by the use of a fast-track procedure to enact legislation which, given the enormity of any decision to reverse a judicial decision, deserves close and searching scrutiny.
The broader point, then, is that if our constitution is (as I think it is) based upon an unwritten but crucial mutual respect between the political and judicial branches, there are likely to be (unpredictable) consequences if one party ceases to treat the other with adequate respect. The capacity of courts to ensure the lawfulness of Executive action forms the centerpiece of our constitutional machinery for upholding the rule of law. And the use of primary legislation to reverse the effects of that process is therefore a fundamental attack upon it. If politicians fail to treat the courts and the rule of law with appropriate respect, politicians should not be surprised if the courts repay them in kind. Nor should it be assumed that judges would be acting unconstitutionally in doing so. This is not a plea for judicial supremacism. Far from it: it is a plea for the Executive and Parliament to recognise the need for restraint that is essential to the effective operation of our unwritten constitution.
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Great post Mark. I might quibble with your use of the word “profound” (if we take that to mean deep-seated and firmly established). Does this episode, on its own, demonstrate a profound lack of respect? Maybe it does: retrospective legislation often involves an especially egregious breach of the rule of law. Or maybe it does when viewed together with the Police (Detention and Bail) Act 2011? Or when all of this is viewed alongside the MoJ Consultation Paper on JR, the intemperate ministerial criticism of judicial decisions and the government’s refusal to accept the arguments advanced by the judges on judicial pensions etc? Maybe all of this does suggest a profound lack of respect–I’m just not so sure.
My instinct is to be cautious about drawing too much from one, or even a handful, of episodes (especially when some episodes haven’t yet been fully played out and when mechanisms of parliamentary accountability are only beginning to bite on a given issue). There is also always a danger of focusing only on the negative aspects of executive-judicial relations, forgetting the many positive aspects of those relations (e.g. the many inconvenient judicial decisions that the Government respects; the many different ways in which ministers do not use powers available to them to undermine the constitutional position of the judiciary). I also wonder whether a sweeping charge of a profound lack of respect should be targeted at only part of the executive (DWP sponsor this bill). I wonder whether different departments in Whitehall exhibit different degrees of (dis)respect?
Your post also leaves me reflecting on the question of who is the guardian of constitutional values inside government these days. We perhaps should not expect the current Lord Chancellor to make strong constitutionally-inspired arguments inside government on this matter, not least since he is a former Shadow SoS for Work and Pensions himself. I do wonder whether, in time, we will begin to see Attorneys General perform the sort of constitutional guardian role that was said to have been previously performed by Lords Chancellor.
Anyhow, as I say, I’m not sure whether this episode suggests there is a profound lack of respect for the judicial branch inside government, but I certainly hope it doesn’t, but then again hope isn’t always an especially useful approach in constitutional affairs.
Thanks for these very thoughtful comments, Graham.
I agree with much of what you say. I do, however, think that the lack of respect point is reinforced by the combination of the two matters to which the Constitution Committee has drawn attention: i.e. the use of retrospective legislation together with an expedited procedure for its enactment. Looked at in one way, that may be taken to evidence a lack (profound or otherwise) of Executive respect for both Parliament and the courts. But the question then becomes whether Parliament will allow itself to be employed in the way and to the end that the Executive wishes.
I absolutely accept that it is dangerous to read too much into an isolated incident. But I think this particular episode forms part of a broader narrative about the relationship between (this) Government/Parliament, on the one hand, and the courts/the rule of law, on the other.
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Like most people, I had always recognised the notion that the law should not be changed retrospectively. But if one loses sight of the reason why retrospective changes are objectionable, one can, all too easily, get too carried away with concept.
It is plainly objectionable if the authorities can invent a rule retrospectively so as to penalise an act which was carried out in the genuine belief that it was lawful. But it is quite another thing for Parliament to discover that an existing rule does not have the effect that Parliament intended and to seek to remedy the defect in the rule’s wording. Whether it is objectionable to do so retrospectively might depend on the extent to which those who would be disadvantaged by the penalty can be said to have acted in the genuine belief that their behaviour was within the rules or in the belief that they were flouting the rules and willing to take the consequences (and also, perhaps, what someone who was ignorant of the rules might have supposed to be the case).
I haven’t studied the in’s and out’s of the Jobseekers case, but if any who were penalised had previously been warned (albeit wrongly) that a penalty would be imposed, the retrospection does not trigger the normal abhorrence for retrospectively amending the law.
The concept of rectifying a contract when it does not say what the parties intended comes to mind. It is clearly not a perfect analogy because legislation is not a contract Jobseekers were not active participants in the passing of the law. But those who knowingly decided to break the rules that had been described to them would be gaining an unexpected windfall if they were allowed a rebate of the penalty and that does not seem to obviously objectionable.
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