If you are studying Public Law (or Constitutional Law) this year, you will know that it is a fast-moving field. And if you are currently revising for an exam in this area, you will no doubt want to put yourself in a position to show that you appreciate the dynamism of the subject. Kept within reasonable limits, this is a good idea—not only because demonstrating knowledge and understanding of cutting-edge developments may be impressive in itself, but because engaging with such matters may help to deepen your appreciation of more enduring aspects of the discipline.
At the same time, however, it is necessary to keep these matters in perspective. The recent development which transforms the subject area, turning it on its head, is a rarity; it is important, therefore, not to become fixated with the latest case, judicial lecture or official report. For the most part, the real value of such things lies in the light they cast—and the ways in which they might consolidate or deepen your understanding of—key principles, institutions and concepts.
Subject to that caveat (and one other), this post highlights some key developments this year in Public Law and attempts to place them in context by demonstrating the ways in which they form parts of broader debates and narratives. The other caveat is that what follows makes no claim to comprehensiveness: rather, it reflects developments that have caught my attention this year and have therefore been the subject of posts on this blog, and which, I think, help to illuminate or place in context fundamental matters that are typically studied by Public Law students.
As the next general election approaches, the future of the Human Rights Act 1998—and even the UK’s involvement in the European Convention on Human Rights—is increasingly in the spotlight. Although it is well over a year since the report of the Commission on a Bill of Rights was published, debate about the HRA and the ECHR has not abated (not least because the Commission’s report was so inconclusive, thanks in no small part to the fact that the Commission was paralysed by disagreement).
It is no surprise, therefore, that Senior Conservatives—in particular, Chris Grayling, the Lord Chancellor and Justice Secretary, and Theresa May, the Home Secretary—were falling over themselves at the party’s conference in September 2013 to criticise the HRA and the ECHR, with Grayling promising to scrap the former and hinting at the possibility of withdrawal from the latter.
However, political and media debate in this area is often ill-informed; if change really is to be contemplated, then it is necessary to think about what that might look like and what the options might be. I explored the different paths that might be taken by a future government seeking to enact reform in this area in a post published last autumn, arguing that four scenarios were worth considering, reflecting two key variables—namely, whether the HRA is replaced with further domestic legislation, and whether the UK remains a member of the ECHR.
One of the main reasons why debate in this area tends to be unsatisfactory is the tendency to run together three interrelated but distinct issues. In a post published in December, I showed that an informed and intelligent debate must distinguish between three different dimensions of the relationship between UK law and the ECHR, concerning the domestic law position, the international law position, and the wider political issues.
For further background on past, present and future of human rights law in the UK, see my post on Law, Rights and Constitutional Politics, and the book chapter (available online) to which that post refers.
The common law and human rights
When the future of human rights protection is debated, a crucial factor that is often overlooked is the role of the common law and the extent to which the domestic constitution—although “unwritten”—embodies fundamental values and rights. Over the course of the last year, the UK Supreme Court has delivered three highly significant judgments that speak to this issue. One of those cases is dealt with below, in the section on EU law and the UK constitution, but the other two can be mentioned here.
In Osborn v Parole Board  UKSC 61, the Supreme Court was asked to decide whether three prisoners had been unlawfully treated by the Parole Board when decisions to keep them in or recall them to prison were taken without according them oral hearings. Lord Reed, giving the sole judgment, said that the appellant prisoners’ advocates had erred by basing their submissions primarily upon Article 5(4) ECHR whilst largely neglecting domestic administrative law. The focus, he said, should have been upon the latter—and the rights that are recognized at common law. This was so because the HRA “does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate”. As I argued in my post on Osborn, Lord Reed’s analysis suggests that repeal of the HRA—and even withdrawal from the ECHR—may be less effective than proponents of such reforms anticipate. This follows because the common law—including rights derived from the ECHR but absorbed into the common law—would remain even in the event of HRA repeal/ECHR withdrawal.
A similar approach was evident in the Supreme Court’s decision in Kennedy v The Charity Commission  UKSC 20. As in Osborn, the Court—in spite of the claimant’s reliance upon the right to freedom of expression under Article 10 ECHR—chose to decide the case by reference to common law rights and values. I suggested in my post on Kennedy that it can be understood as part of a new stream of constitutional jurisprudence emerging from the Supreme Court, and evidences a renaissance in this area, as common-law constitutionalism emerges from the shadow of the Human Rights Act.
Reading cases like Osborn and Kennedy, it is hard to resist concluding that senior judges are laying the ground for possible HRA repeal and ECHR withdrawal, and that, in doing so, they are ensuring that the underlying common law landscape that would be laid bare in such circumstances would turn out to embody a set of human rights protections comparable to those that obtain today.
EU law and the UK constitution
The third in the trilogy of Supreme Court cases referred to above is R (HS2 Action Alliance Ltd) v Secretary of State for Transport  UKSC 3. The facts are set out in more detail in my post on the case, but the essential question was whether the procedure by which decisions concerning the construction of the proposed “HS2” high-speed rail network were to be made could be challenged on the ground that it breached requirements laid down in an EU Directive. The primacy of EU law would normally supply a ready answer to that question, but the difficulty in this case was that the procedure being followed involved the decision being made by Parliament. Even Acts of Parliament, of course, are not immune to challenge on EU law grounds, as the Factortame case illustrates. However, a further difficulty in this case was that a challenge to the procedure adopted by Parliament might have required the court to assess the adequacy of that procedure by reference to Directive’s requirements. And this, as Lord Reed observerd, might have impinged “upon long-established constitutional principles governing the relationship between Parliament and the courts, as reflected for example in article 9 of the Bill of Rights 1689”. In the end, the Court concluded that no such constitutionally-problematic scrutiny of parliamentary procedure was necessary.
But what if it had been? Could EU law override a fundamental constitutional principle such as the one reflected in article 9 of the Bill of Rights? The Supreme Court doubted this, on the ground that Parliament, when it gave force to EU law by virtue of section 2 of the European Communities Act 1972, should not be taken to have intended to give EU such a degree of force as to permit it to ride roughshod over fundamental constitutional principles or legislation. As I explained in my post on the case, this suggests that EU law has been accorded only a qualified primacy which enables it to prevail over most domestic law, but not over fundamental constitutional law. It also suggests that the binary distinction between constitutional and regular statutes identified in Thoburn v Sunderland City Council  EWHC 195 (Admin) needs to be rethought—some constitutional statutes (such as the Bill of Rights) arguably being more fundamental than others (such as the ECA 1972).
The constitution, the role of the judiciary and parliamentary sovereignty
Taken in combination, Osborn, Kennedy and HS2 paint a fascinating picture of the common law constitution. It remains (as always) a work in progress, but the direction of travel seems clear, as senior judges exhibit an increasing willingness to expose and rely upon the structure and norms of that constitution, sometimes in preference to its more explicit statutory aspects. Against that background, a lecture given by Lord Neuberger earlier this year on “The British and Europe” contained some particularly puzzling statements about the constitution. In fact, Lord Neuberger went as far as to suggest that the UK “has no constitution as such at all”. He said that in the course of trying to explain what he characterized as exceptionalist British attitudes towards the EU and the ECHR, arguing that the existence of parliamentary sovereignty and (as he sees it) the absence of a constitution means that European laws are able to exert a more profound and obvious influence in the UK than in countries that have written constitutions which may operate to limit the domestic impact of European laws.
Lord Neuberger certainly has a valid point. However, as I said in my commentary on his lecture, he arguably fails to give due credit to the subtleties of the modern British constitution highlighted by cases like Osborn, Kennedy and HS2. None of those cases is inconsistent with parliamentary sovereignty, and none suggests that the UK has a constitution (although unwritten) that is hierarchically superior in a way that absolutely limits the authority of Parliament or the impact of European laws whose effect in the UK is licensed by Act of Parliament. However, as noted above, those cases do suggest that, parliamentary sovereignty notwithstanding, there exists a hierarchy of norms within the constitution that may inform our understanding of the effect of (among other things) European laws. This is not to suggest that there are not important differences between the British constitution and those of other European countries—but the differences may be more subtle than a wholly orthodox account of the UK’s constitution would suggest. These issues are explored in greater depth in my post on parliamentary sovereignty in a multidimensional constitution and in the evidence I submitted to the House of Commons Political and Constitutional Reform Committee on the implications for parliamentary sovereignty and the judicial role of adopting a written constitution.
Judicial review reform
For the last 18 months, there has been considerable debate about judicial review reform, driven by a perception on the part of the government that judicial review can have a negative administrative and economic impact by slowing down decision-making processes and holding up major infrastructure and other projects of economic significance. The most recent set of proposals, published in September, are summarized in this post.
One of the proposals was to limit standing in order to prevent judicial review from being sought by campaign and pressure groups. I argued in this post that such a change would be wholly inappropriate, not least because it fundamentally misunderstands the purpose of judicial review which extends beyond the protection of individual “rights” and encompasses the promotion of good administration, in which everyone—not just victims of particular instances of maladministration—has a shared interest. A similar position was adopted by Baroness Hale in a lecture she gave in November.
The proposal concerning standing was dropped, but many of the others are being taken forward, as I explained a post published in February. More recently, the parliamentary Joint Committee on Human Rights has published its report on The implications for access to justice of the Government’s proposals to reform judicial review (HL 174 HC 868 2013-14). It is highly critical of the Government’s latest proposals. For a summary of the main points made in the report and a commentary on them, see this post published in April 2014.
Judicial review generally (and substantive review in particular)
Finally, there have been some interesting developments in relation to substantive judicial review. These have particularly caught my attention because I am currently co-editing a book on that subject, and have been writing a chapter for the book about how we should think about the relationship between the Wednesbury and proportionality tests and the role of deference; a preliminary version of my argument can be found in a piece I posted in September.
Similar issues were explored by Lord Carnwath in the 2013 annual lecture to the Constitutional and Administrative Law Bar Association. Carnwath was highly critical of much of the current law in this area, but, in doing so, retreated into a highly practical—and arguably unprincipled—approach. In my commentary on Carnwath’s lecture, I argued that the approach he adopted in it risked dismantling the conceptual apparatus of this part of administrative law, and that (legitimate) dissatisfaction with current doctrine should not lead us to abandon attempts to secure doctrinal coherence in this area, but should instead cause us to think harder about what the law is trying to achieve and what doctrinal vehicles are best suited to delivering that.
Finally on this point, three particularly interesting cases have been decided recently. First, in R (Rotherham MBC) v Secretary of State for Business, Innovation & Skills  EWHC 232 (Admin), the Administrative Court applied what is known as the “super-Wednesbury” test (that is, an especially deferential version of the rationality test) and held that the proportionality test was ill-suited to situations in which no “specific legal standard” had been infringed. As I argued in my post on the case, its significance is twofold: it rejects the view, advanced by some commentators and judges, that proportionality should wholly supplant Wednesbury, and affirms that variable-intensity Wednesbury remains part of contemporary administrative law.
Second, in Miranda v Secretary of State for the Home Department  EWHC 255 (Admin), the Divisional Court considered the structure of the proportionality test. It followed the version of the test advanced by Lord Sumption in Bank Mellat v Her Majesty’s Treasury (No 2)  UKSC 39, including a final “fair balance” stage. As noted in my post, Laws LJ offered some perceptive comments in Miranda on the implications of fair-balance review, observing that the nature of the issues with which the court must engage at that stage are especially sensitive, and raise particular questions about the proper limits of the judicial role. These comments are to be welcomed, not least because they lay the foundation for a more structured approach to proportionality and deference—something for which I have argued elsewhere.
Third, Kennedy v The Charity Commission  UKSC 20 is significant in this context, as well as for the reasons mentioned above. It contains an interesting discussion of the extent to which proportionality should be considered a common-law principle of judicial review. For detailed commentary, see this post.
As noted at the beginning of this post, knowing about what is going on in Public Law is important not (only) for its own sake, but because of the light it casts on the fundamentals. In turn, appreciating what those fundamentals are—and how they might be impacted or illuminated by recent developments—requires an understanding not just of the detail of the subject, but of how its different parts relate to one another. Recognizing how the different pieces of the jigsaw fit (or sometimes do not fit) together is key to succeeding in Public Law, a bird’s-eye view of the subject being just as important as a grasp of the detail. If you find yourself struggling in this regard, you might like to look at the first chapter of the new edition of Elliott & Thomas, Public Law (available free of charge here), or at my videos on An Introduction to Public Law by way of the Belmarsh Prison case.