In his recent Sultan Azlan Shah Lecture, Lord Sumption addresses “The Limits of Law”—or, more accurately, given the content of the lecture, the limits of the judicial role. Sumption seeks to establish that there is limited scope for judges legitimately to adjudcate upon questions concerning the balance to be struck fundamental rights and conflicting interests. The lecture is interesting and carefully argued, and is worth reading in full. The burden of the argument, however, is apparent from the following passage which can be found towards the end:
I have already mentioned Professor Ronald Dworkin, whose death last year deprived us of one of the most formidable defenders of rights-based law defined by judges. He defended it against those who would leave this to the legislature, by arguing that judges were at more likely to get the answer right. “I cannot imagine”, he wrote, “what argument might be thought to show that legislative decisions about rights are inherently more likely to be right than judicial decisions.” The problem is that this assumes a definition of “rightness” which is hard to justify in a political community. How do we decide what is the “right” answer to a question about which people strongly disagree, without resorting to a political process to mediate that disagreement? Rights are claims against the claimant’s own community. In a democracy, they depend for their legitimacy on a measure of recognition by that community. To be effective, they require a large measure of public acceptance through an active civil society. This is something which no purely judicial decision-making process can deliver.
But I would go further than this. Unlike Professor Dworkin, I can imagine why legislative decisions about rights are more likely to be correct than judicial ones, even if what one is looking for is the intellectually or morally ideal outcome. The reason, as it seems to me, is that rights can never be wholly unqualified. Their existence and extent must be constrained to a greater or lesser extent by the rights of others, as well as by some legitimate collective interests. In deciding where the balance lies between individual rights and collective interests, the relevant considerations will often be far wider than anything that a court can comprehend simply on the basis of argument between the parties before it. Litigants are only concerned with their own position. Single-interest pressure groups, who stand behind a great deal of public law litigation in the United Kingdom and the United States, have no interest in policy areas other than their own. The court, being dependent in the generality of cases on the material and arguments put before it by the parties, is likely to have no special understanding of other areas. Lon Fuller famously described these as “polycentric” problems. What he meant was that any decision about them was likely to have multiple consequences, each with its own complex repercussions for many other people. “We may visualise this kind of situation by thinking of a spider’s web,” he wrote; “a pull on one strand will distribute tensions after a complicated pattern throughout the web as a whole.” In such a case, he suggested, it was simply impossible to afford a hearing to every interest affected. One of three consequences follows, and sometimes all three at once. First, the judge may produce a result which because of its unexpected repercussions is unworkable or ineffective or obstructive of other legitimate activities. Secondly, the judge may end up by acting unjudicially. He may consult third parties, or make guesses about facts of which he has no sufficient knowledge and cannot properly take judicial notice. Third, he may reformulate the issue so as to make it a one-dimensional question of law in which the only relevant interests appear to be those of the parties before the court, which is what the Divisional Court did in Mr. Witham’s case. Decisions made in this way are necessarily made on an excessively simplified and highly inefficient basis.
It is, of course, true that many cases concerning rights are polycentric in the sense that Fuller described. The difficult question that then arises concerns how courts should respond in such circumstances. There are two reasons why courts—at least in the UK—should not react to polycentric situations by simply treating the questions as off limits.
First, such an over-reaction would be uncalled for were the courts to have at their disposal a sufficiently sophisticated doctrine of deference. As I argued elsewhere, one of the great disappointments of post-HRA administrative-law jurisprudence has been the failure of the courts to develop such a doctrine. The existence of such a doctrine would enable courts properly to negotiate the difficulties which Sumption identifies, by tailoring their approach to judicial review to the institutional and constitutional circumstances of the case. It would be unfortunate, to put it mildly, if the courts’ failure to develop an adequately nuanced doctrine of deference were to be considered to be an argument in favour of a blunter form of judicial retreat.
Second, except perhaps when directly-effective European Union law is implicated, UK courts never find themselves in circumstances in which they have the final word on a constitutional (or, for that matter, any other) issue. This is a straightforward function of the principle of parliamentary sovereignty. It follows that judicial review in the UK is dialogic in the sense that judicial decisions are always subject to the possibility of legislative retaliation. This should not be regarded by the courts as giving them licence to cast all considerations of deference to one side, and it should certainly not be taken (as some have suggested) to justify judges acting as partisan human-rights champions. Rather, my point is the more modest one that the fact that courts in the UK lack the last word undercuts arguments in favour of a hyper-cautious approach to rights adjudication.
Even when the Human Rights Act 1998—and so, as a result, the European Convention on Human Rights—is involved, it is constitutionally open to Parliament to respond, e.g. by ignoring a declaration of incompatibility, legislating to reverse or modify the effect of an interpretation rendered under section 3 of the Act, or replacing the offending legislative scheme with something different altogether. This, of course, is subject to the long-stop possibility of the matter being litigated in the Strasbourg Court, the judgments of which are binding upon the UK as a matter of international law. However, it does not follow automatically that the Strasbourg Court will share the UK judiciary’s view of the matter. And the possibility that it might, thereby in effect retrospectively investing the domestic judgment with greater legal bite, is not a valid justification for an overabundance of domestic judicial caution in the first place.
Sumption’s argument is infused with the notion that “political” questions have been improperly transformed into “legal” ones as a result both of the common-law constitutional rights doctrine and, lately, the heighted influence in the UK of the ECHR. The difficulty with that position is that it is can be used against itself with relative ease. Just as political questions do not become legal ones merely because they arise from a legal text, so legal questions do not become political ones simply because the interpretation of a legal text raises political matters. The drawing of a binary distinction in this context is intellectually impossible and practically futile. In the absence of such a simple answer to questions about the limits of the judicial role, it is necessary instead to take seriously the need for a mature doctrine of deference informed by due appreciation of the constitutional and institutional setting within which rights adjudication takes place in the UK today.