For some readers (perhaps soon to be ex-readers) of this blog, their Public Law exam will be looming. As the end of the academic year approaches, I have been reflecting on some of the key developments in Public Law that have taken place during the last 12 months. The following is not intended in any sense to be comprehensive. Like my 2014 review post, this one simply reflects themes and issues that have caught my interest; the developments on which I have chosen to focus are matters on which I have written in more detail in earlier posts (to which links can be found below). They fall into three broad categories, respectively concerning the British constitution’s changing architecture, the nature of human-rights protection in the UK, and the courts’ perception of their role within the contemporary British constitution.
Constitutional architecture: Devolution and federalism
The year began with one of the most significant constitutional events in the UK for many years: the referendum on Scottish independence. Although Scotland voted (by a relatively narrow margin) to remain within the UK, the aftershocks of the referendum are still being felt. Indeed, it is no exaggeration to say that even if the “no” vote is not, in due course, superseded by a “yes” vote in a subsequent poll, the 2014 referendum is likely to be regarded for decades to come as a landmark constitutional event.
That is perhaps most obvious right now in political terms, the expectation being that the Scottish National Party will win a large number of seats in the general election and likely be in a position to wield considerable influence in Westminster thereafter. However, whatever the immediate political ramifications of the independence referendum might be, it is also producing more profound — and, in practice, irreversible — changes to our institutional and constitutional structures. I wrote about this in some detail in the immediate aftermath of the referendum. Since then, the proposals of the Smith Commission for the devolution of significant further powers to Scotland have been published, as has draft legislation indicating how they might be implemented. It is not my intention here to attempt to summarise or to comment on the detail of the Smith Commission’s proposals. Rather, my focus is on the likely implications of deeper Scottish devolution for the UK as a whole.
The Scottish referendum represented a watershed moment in relations amongst the nations that make up the UK. It appears to me that, to some extent, mutual trust — at least at a political-institutional level — is being eroded. And this points towards two (related) consequences, both of which are highly constitutionally significant. First, it suggests that there is going to be greater need for recourse to legal, as distinct from political, tools of constitutionalism. Informal understandings based upon constitutional convention are less likely to cut it, and the need will therefore arise to replace such understandings with tighter arrangements that possess some form of legal bite. Second, this process of constitutional legalisation is likely to go hand-in-hand with a process of federalisation. Some commentators — including Lady Hale JSC, no less — have argued that the UK’s constitution is already a federal one. Viewed in strictly legal terms, this is not (yet) so. But it is clear that the direction of travel is towards a more-federal system, even if the UK’s circumstances and approach to constitutional reform are too unique (at least in the short-to-medium term) to facilitate the wholesale adoption of a fully federal model. Two examples will help to illustrate this point, both of which concern responses to the Scottish referendum outcome.
First, as soon as the referendum result was announced, the Prime Minister indicated that he considered it necessary to reopen the West Lothian Question by placing on the table the issue of “English votes for English laws”. This apparently intractable problem has still not been solved (although proposals were brought forward prior to the referendum by the McKay Commission). But if the Conservative Party has now undertaken (if it is in a position to do so) to bring forward plans to tackle this issue early in the next Parliament. Even if this happened, and if some system of English votes for English law were implemented, it would not follow that a federal system had come about. But such a development would form an important milestone in terms of the formalisation of constitutional dividing lines. Indeed, for certain purposes, it would create a de facto English Parliament under the institutional umbrella of the Westminster legislature, reserving to the Westminster Parliament proper the sort of pan-UK legislative business that would, elsewhere, be termed “federal”.
Second, it is clear that the desire for harder institutional divisions cuts both ways. Just as Cameron wants English MPs to be able to have their way, so the Smith Commission insisted that the Scottish Parliament should be rendered constitutionally secure by means of legally preventing the UK Parliament from interfering with or abolishing it. The Scottish Parliament, said the Commission, should be made “permanent”. The proposal raises a series of interesting questions about the implications of attempting to place on some sort of statutory footing conventional understandings about the respect that the UK Parliament is expected to attach to the Scottish Parliament’s autonomy. It also raises some quite fundamental questions about whether the UK Parliament can limit its own authority by stating that the Scottish Parliament is “permanent” (and hence supposedly beyond abolition by Westminster). I will not, however, go back over those issues here (my views on which can be found in a detailed post about the proposals and in the written evidence that I submitted to two parliamentary committees).
Instead, it is sufficient to say that these developments illustrate my argument that the UK is in the process of drifting towards a system that exhibits greater federal characteristics than did the original vision of devolution introduced in the late 1990s. In particular, they evidence the building of pressure for greater formalisation of institutional distinctions, and the reimagining of the constitution in a way that embraces at least certain elements of the federal model. Whether this form of federalising drift — which epitomises the casual, piecemeal approach to constitutional reform adopted in the UK — will prove sufficient to hold the UK together remains to be seen: some commentators, like Vernon Bogdanor, have argued that the time is now ripe for a more systematic and deliberate process of constitutional change. Anyone who wishes to situate these questions within a broader theoretical framework — which, among other things, acknowledges that the notions of devolution and federalism are not wholly distinct but rather sit on a continuum — would do well to watch the lecture given by Cheryl Saunders in Cambridge in early 2015. It is available on YouTube.
In many countries, the legal enforceability of human rights is taken for granted: it is a given, because it is written into the text of the constitution. Not so in the UK, where the Human Rights Act remains a political football. Opponents of the Act coalesce around two broad arguments which respectively doubt the appropriateness of assigning to judges questions about how to balance individual rights against broader public-interest concerns, and, to the extent that that task ought to be performed at all, the wisdom of conferring it upon European rather than British judges.
While the Labour Party and the Liberal Democrats have confirmed that they wish to preserve the Human Rights Act, it has for some time been the policy of the Conservative Party to repeal it and replace it with a “British Bill of Rights”. Although vague, this policy appears to be animated by both of the factors sketched above, Conservatives taking exception both to the influence of the European Court of Human Rights and to the way in which the binding nature of its judgments results in the removal from the political arena of rights questions.
A paper published by the Conservative Party in late 2014 proposed radical changes in the relationship between the UK and the Council of Europe — the umbrella body under whose auspices the ECHR sits — suggesting that UK courts should be told to depart from ECtHR case law in certain areas, that UK courts should no longer be required to take account of that case law, and that the UK should treat Strasbourg judgments as “advisory” rather than (as they actually are) legally binding. The paper went on explicitly to acknowledge that these proposals may be incompatible with the UK’s international obligations under the ECHR and that it might be necessary for the UK to cease to be a party to the Convention. I analysed those proposals in detail, but noted more recently that the Conservative Party’s election manifesto makes no mention of them. This might imply acknowledgment of the likely political impossibility of implementing such proposals. In the first place, it seems that even if the Conservative Party is in government in the 2015-20 Parliament, it will once again be constrained by a coalition partner that is unwilling to countenance radical reform in this area. In the second place, even if the Conservatives were to form a single-party majority government, the politics of devolution would likely prove a major inhibiting factor. All of that said, recent pronouncements of Lord Faulks, a Conservative Minister in the the Ministry of Justice, suggest that ECHR withdrawal remains in contemplation.
Against this background, it is highly significant that the courts — and, most particularly, the Supreme Court — have been increasingly emphasising the notion of common-law constitutional rights. It may be that the reasons for this transcend the possibilities of HRA-repeal and ECHR-withdrawal, but it is hard to avoid concluding that those possibilities form at least part of the impetus for this increasingly prominent line of jurisprudence. I wrote about this development in my 2014 review post, noting a series of Supreme Court judgments that placed great emphasis upon the common law as a repository of fundamental rights, the implication being that the common law would continue to uphold such rights even if the HRA and ECHR were no longer relevant.
I have been thinking about that line of case law a good deal recently. Earlier this year, I gave a Current Legal Problems lecture on this subject. Some writers have suggested that the potency of the common law is such that even a scorched-earth policy involving HRA-repeal and ECHR-withdrawal would be of limited effect, because the common law might develop so as to fill the gap. There is something in this suggestion, but it is important to avoid complacency. The Human Rights Act has clearly emboldened the judiciary, and it has made available in domestic law a range of fundamental rights substantially greater than anything acknowledged previously. It is therefore necessary to acknowledge that whatever the potential of the common law might be, it does not follow that it could straightforwardly substitute for the HRA if it were to be repealed. I explore these ideas in much more depth in the article version of my Current Legal Problems lecture.
The nature of the constitution and the courts’ role within it
Questions about the common law’s capacity to facilitate human-rights protection are merely a facet of broader and deeper questions concerning the nature of the contemporary constitution and the courts’ role within it. Those are questions with which the Supreme Court has been grappling this year, as three key judgments of the Court — in Carlile, Pham and Evans — illustrate. These cases tell us (at least) two things. First, they show that there is disagreement with the Supreme Court concerning the role of the judiciary vis-à-vis the other two branches of government. Second, however, they disclose a view of the judicial role that is, on the whole, increasingly bold, and that characterises judges as custodians of fundamental constitutional values. I have written detailed posts about each of these cases, and will not seek to summarise them here. Rather, I will draw out some broader points.
First, the significance of Carlile — for present purposes — is that it brings out certain aspects in which the nature of the judicial role in public law is fundamentally contested. A spectrum of judicial opinion can be found among the Justices’ judgments in Carlile, but it is the judgments of Lords Sumption and Kerr that contrast most starkly. Whilst castigating the language of “deference”, Lord Sumption embraced its spirit with unbridled enthusiasm. When, as in Carlile, a court is called upon to review the legality of an executive decision, Lord Sumption said that deference might be warranted on one or both of two grounds — namely, the executive’s “special constitutional function” (e.g. its special responsibility, on this view, for upholding national security) and its (sometimes) superior institutional capacity to weigh the issues that are at stake. All of which caused Lord Sumption to conclude not that certain aspects of the proportionality test should be applied in a less-exacting way, but that its most-demanding aspects — that is, the necessity and fair-balance questions — should not be asked at all in the present case, the inquiry essentially being limited to one of rationality. In contrast, Lord Kerr, in his dissent, argued that the Minister concerned could not be permitted to have “the final word”. The court had to assess the proportionality of the decision, forming an independent judgment and giving “prominence” to the right at stake. This, said Lord Kerr, requires the courts “not only to examine the reasons given for the interference [with the right] but also to decide for themselves whether that interference is justified”.
On the face of it, Lords Sumption and Kerr are disagreeing about the implications of the Human Rights Act and, in particular, its effects upon the separation-of-powers doctrine and the courts’ role under it. On the one hand, Lord Sumption considered that the Act “did not abrogate the constitutional distribution of powers between the organs of the state”. On the other hand, Lord Kerr said that, via the Act, the courts have been “charged with the solemn duty by Parliament of deciding whether the political reasons that have actuated the decision to interfere with the particular Convention right justify the interference”, and that the courts therefore “have a clear obligation to have proper regard to the importance of the right which has been interfered with”.
However, while Lords Sumption and Kerr are ostensibly disagreeing about the extent to which the HRA permits (or requires) courts to perform functions that are out of line with those traditionally ascribed to them, something deeper — pertaining to their respective conceptions of the judicial role — evidently underlies that disagreement. Lord Sumption’s vision of the judicial role is a conservative one (a term that is not intended perjoratively); Lord Kerr’s is a more expansive one. As a result, Lord Sumption is less inclined to view the HRA in the game-changing terms that Lord Kerr is: for Lord Sumption, the HRA modifies, but does not change beyond recognition, the pre-existing separation of powers. For both, however, the implications of the HRA are ultimately to be understood not by reference to its sparse terms, but by reference to the nature of the constitutional order in which it was enacted.
Public lawyers have debated for many years and at great length about whether, now that UK courts apply the proportionality doctrine in cases concerning EU law and ECHR rights, they should jettison the Wednesbury doctrine and look to proportionality as a single tool of substantive judicial review. This issue has been a controversial one not least because domestic courts have, at least to some extent, viewed the proportionality test as a constitutionally novel and dangerous notion that threatens the separation of powers. The raison d’etre of the Wednesbury is to guard against what might be considered unwarranted judicial interference: an objective that is realised by framing the test so as to permit judicial intervention on substantive grounds only if the impugned executive decision reaches a (very high) threshold of manifest unreasonableness. In contrast, the proportionality doctrine is generally understood to facilitate readier judicial intervention by means of subjecting executive decisions to more-exacting scrutiny.
Against this background, some writers — such as Lord Justice Sales — have argued that it would be improper for UK courts to engage in proportionality review except in circumstances in which such review has been statutorily licensed by Parliament. On this view, courts require Parliament’s permission — through such measures as the European Communities Act 1972 and the Human Rights Act 1998 — to engage in what would otherwise be a constitutionally impermissible form of judicial review. I have argued before that this view is questionable. It has now been rejected by the Supreme Court in Pham. With different degrees of clarity and enthusiasm, the Justices in that case endorsed the notion that domestic courts can engage in proportionality or proportionality-style review in cases that have no EU or ECHR dimension. (Lords Mance and Reed were particularly clear about this, whereas Lords Carnwath and Sumption preferred to emphasise the way in which Wednesbury and proportionality review can be considered to share certain common characteristics.)
Questions of the type that arose in Pham are on one level quite technical matters of administrative law. However, they also provide insight into the Supreme Court’s perception of the judiciary’s constitutional role. In particular, Pham provides support for the view that UK public law increasingly embodies a culture of justification: that is, a legal culture which acknowledges fundamental rights and values, and which provides that official action that impinges upon such matters will be lawful only to the extent that it is susceptible to reasoned justification before an independent judicial body. In particular, by embracing proportionality review — and the culture of justification that it implies — as a feature of domestic public law, the Supreme Court in Pham rejects the notion that these approaches to public-law adjudication have merely been grafted on, for the time being, by the UK’s association with European institutions.
Few cases qualify for constitutional-blockbuster status. However, the decision of the Supreme Court in Evans — concerning the legality of the government’s attempt to block the release of Prince Charles’s “black-spider memos” — is one of them. At its heart lies a series of questions concerning a network of constitutional relationships between the monarchy and the executive, constitutional convention and constitutional law, the executive and the courts, ‘regular’ courts and tribunals and, ultimately, between several fundamental constitutional principles. It is the range and depth of those questions, together with the disparate answers given to them by a divided seven-Justice Supreme Court, that justifies characterising Evans as one of the landmark public-law cases of the early 21st century.
I will not attempt here to summarise my detailed post on Evans. Instead, I will draw out a larger point that underpins much of the judicial reasoning found in Evans. One of the striking things about the case is the extent of the judicial disagreements evident within the judgments —within the majority as well as between the majority and minority. Why should such disagreements arise? Why, for instance, does Lord Mance consider Lord Neuberger’s approach to statutory interpretation to be untenable? And why do the dissentients consider both of the approaches adopted by the majority, based respectively upon statutory construction and strict judicial scrutiny, to be constitutionally improper?
These disagreements arise in Evans because it is a case that turns ultimately upon the meaning and interoperation of three basic but contested constitutional principles: the sovereignty of Parliament, the rule of law and the separation of powers. Each of these principles forms the site of controversy in that there can be, and often is, disagreement about precisely what they mean. But it is crucial to recognise that these principles acquire much of their meaning from their relationship with one another. It is, for instance, problematic to suggest that parliamentary sovereignty requires this or that meaning to be assigned to a given legislative provision — both because the assignment of meaning can only be the product of an interpretive process, and because that process will itself be informed by (among other things) other relevant constitutional principles, including the rule of law and the separation of powers. In this sense, the basic architecture of the constitution consists of a series of fundamental and relational principles. They make subtle, overlapping, sometimes-contradictory, sometimes-complementary claims. None of them stands for a simple proposition, and the degree of complexity that they exhibit when viewed in isolation is multiplied when they are — as they must be — conceived of in relational terms. Against this background, it is hardly surprising that Evans contains such sharply differing judicial views. What ultimately underpins that disagreement is different judicial perspectives about the how the constellation of fundamental principles lying at the heart of the British constitution are aligned with one another, and about the relative weight to be ascribed to each of them, both generally and within the specific factual matrix of the case.
Thus Evans — like Pham and Carlile in different yet comparable ways — evidences the Supreme Court grappling ultimately with its own role within the constitution, as well as with the role of the other two branches of government. It will be apparent from what has been said about them that these cases do not convey a simple, or single, message concerning the answers to these questions. What is, however, clear is that those questions are increasingly framed by the Court as ones that fall to be resolved by reference not to external (i.e. European) influences that have often been taken to dominate in recent years, but by reflection upon the nature of the UK’s domestic constitutional order. In this way, the Supreme Court is increasingly the author of a distinctive British constitutional jurisprudence that is befitting of its status as the UK’s apex court.