Ekins and Forsyth on Evans: A Brief Response

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As part of Policy Exchange’s Judicial Power Project, Richard Ekins and Christopher Forsyth have published a trenchant critique of the Supreme Court’s judgment in Evans, concerning the lawfulness of the Government’s decision to veto disclosure of Prince Charles’s correspondence with Ministers under the Freedom of Information Act 2000. I published my own analysis of Evans in Public Law in October, and I will not attempt to rehearse it here. Instead, I simply draw attention to (and question) the way in which Ekins and Forsyth characterise my position. They write that I have

speculated that a legislative response to Evans might well prompt the courts to assert the authority to invalidate the legislation, which they might consider contrary to the rule of law. (A handful of judges in some recent cases have suggested that such a power might exist.) The speculation seems to us ungrounded. If the Supreme Court were to act thus it would be asserting an authority over Parliament that is flatly ruled out by our constitutional tradition: an assertion of judicial supremacy of this kind would be a coup not a judgment.

Ekins and Forsyth’s characterisation of my position is presumably based on the following excerpt from my blog post on Evans:

Not all judges—not all Supreme Court judges—accept that interpretive protection of fundamental constitutional norms is as far as the courts may legitimately go. Of course, such judges almost invariably accompany dicta touching upon the possibility of judicial disobedience to constitutionally suspect legislation with lavishly extravagant examples such as a full-frontal assault upon the basic tenets of democracy or the evisceration of the courts’ powers of judicial review. However, it occurs to me that if, as has been hinted today by the Prime Minister, section 53(2) of the Freedom of Information Act were redrafted so as to attempt to confer wide powers of Ministerial override of judicial decisions, such a provision might plausibly be considered to fall into that category—if it exists at all—of legislation so constitutionally egregious as to test the courts’ commitment to the absolute supremacy of Parliament. The very fact that courts clothe judgments such as Evans in the conceptual apparatus of interpretation demonstrates that they are certainly not spoiling for a fight such as this. Far from it. But Evans—and the broader stream of recent jurisprudence that places common-law constitutionalism front-and-centre—suggests that it would be a complacent Government that took the outcome of such a confrontation with the judges entirely for granted.

I accept that I engage in speculation, but I question Ekins and Forsyth’s characterisation of what I am speculating about and their assertion that such speculation is unwarranted (or ‘ungrounded’). These two matters are related.

As far as the first matter is concerned, my suggestion was not that a court would or ought to ‘invalidate’ a provision in an Act of Parliament. Rather, I suggested that there may exist a category of statutory provisions—including provisions permitting the executive branch to override judicial decisions—that are ‘so constitutionally egregious as to test the courts’ commitment to the absolute supremacy of Parliament’. It is certainly not my view that courts can or should ignore the language that Parliament has used when enacting the relevant provision. Nor is it my view that language is infinitely elastic so that, irrespective of what the text says, the court can make it mean whatever it wants it to mean. As I say in my Public Law article on Evans:

Unless the obligation to enforce legislation is to be emptied of any meaningful content, a point must come at which the statutory text is so clear as to preclude a given ‘interpretation’, even if competing constructions would accommodate rule-of-law or separation-of-powers considerations less fully. The obligation, after all, is to interpret the statutory provision, not to treat it as an essentially blank canvas on which to project constitutional values that operate so radically upon the provision as to overwhelm it.

The root of my disagreement with Ekins and Forsyth thus concerns the legitimate extent of interpretation, which sits on top of a deeper disagreement not about the existence of parliamentary sovereignty, but about the nature of the doctrine. For Ekins and Forsyth, the courts’ interpretive task

is to find and give effect to the intention of Parliament in enacting the statute, reading the statutory language in the context of enactment to determine how Parliament chose to change the law. This focus on what Parliament has chosen and promulgated is required by the constitutional principles of the rule of law and parliamentary sovereignty which here, as often, march hand in hand. The rule of law forbids anyone, Supreme Court judges included, from departing from the law and parliamentary sovereignty provides that what Parliament enacts is law.

But this only gets us so far. If courts are required to give effect to the law that Parliament enacts, then courts must determine what those enactments mean. The crunch question, therefore, is whether parliamentary sovereignty really requires courts to—and to do no more than—‘find and give effect to the intention of Parliament in enacting the statute’. This seems to me to reduce to the question whether we understand the principle of parliamentary sovereignty in absolutist or relative terms. On an absolutist conception of parliamentary sovereignty, the implementation of ‘the true intent of Parliament’ (as Ekins and Forsyth put it) is the courts’ lodestar, and reduces, it appears, to an obligation to give effect to what Lord Hughes in Evans called ‘the plain words’ of the statute.

However, on a relative conception of parliamentary sovereignty, that notion is understood to sit in relationship with other key constitutional principles, most notably the rule of law and the separation of powers. And that, in turn, means that the judicial obligation to give effect to the law that Parliament enacts implies an obligation first to give meaning to that legislation through an interpretive process that is animated the full range of relevant constitutional principles. For Ekins and Forsyth, the role of the rule of law appears to be a merely supporting one—something that demands adherence to the law enacted by Parliament. In contrast, on a relative conception of parliamentary sovereignty, the rule of law (along with the separation of powers) plays a more central role in determining what the obligation to give effect to laws enacted by Parliament actually amounts to. To the extent, therefore, that I ‘speculate’, I do so not about judicial invalidation but about judicial interpretation. And it follows that such ‘speculation’ as I might have engaged in in relation to this matter concerns not whether Parliament is sovereign but what parliamentary sovereignty means and how its meaning and application may be informed by other fundamental constitutional principles.

I address this point in my Public Law article in the following terms:

Lord Neuberger’s construction [in Evans] is undeniably strangulated, the interpretations of the other Justices being obviously far less strained. Does this mean that Lord Neuberger’s construction is wrong, or that it denies parliamentary sovereignty? Viewed in one way, the notion of parliamentary sovereignty is a binary one: either Parliament is sovereign, because it is competent to enact any legislation it wishes, or it is not; and, if it is sovereign, courts have no choice but to enforce its enactments regardless of their content. That obligation lies at the heart of the notion of parliamentary sovereignty, any qualification of the obligation being an apparent repudiation of the sovereignty principle itself. However, the significance of the obligation can meaningfully be understood only in the light of its content. And whatever the content of the obligation might be, it self-evidently does not connote a duty invariably to give effect to nothing other than the literal meaning of the words used by Parliament. The judicial obligation to enforce legislation implies a judicial power to interpret it, including in the light of relevant constitutional principles.

So, is such speculation unwarranted? That rather depends on what the subject of the speculation is. Ekins and Forsyth’s view that the speculation is unwarranted rests upon their characterisation of what it is about: it concerns (they imply) the possibility of judicial invalidation. And because only a ‘handful of judges in some recent cases have suggested that such a power might exist’, such speculation (they might be taken to imply) is ‘ungrounded’ because it is the hobby-horse of one or two maverick judges. This position, however, is curiously inattentive to both the Anisminic case and Forsyth’s own analysis of it.

As is well known, in Anisminic, the Appellate Committee of the House of Lords was required to decide whether an ‘ouster clause’ that appeared to preclude judicial review of administrative determinations actually had that effect. Such a provision is an obvious affront to the rule of law because, as Lord Neuberger said recently in Keyu, ‘There is no more fundamental aspect of the rule of law than that of judicial review of executive decisions or actions.’ Doubtless influenced by that consideration, the House of Lords in Anisminic did anything but give effect to the ‘plain words’ of the ouster clause, deciding that it did not protected determinations disclosing a jurisdictional error on the part of the decision-maker. That Anisminic failed to give effect to the ‘plain words’ of the ouster clause is acknowledged in the authoritative Administrative Law textbook of which Forsyth, along with the late Sir William Wade, is co-author. Indeed, in Administrative Law, Wade and Forsyth go further, suggesting that Anisminic amounted not to the interpretation of the provision but to judicial rejection of it: the judgment, they write, rendered ‘shall not be questioned’ ouster clauses ‘totally ineffective’, such that ‘[t]he policy of the courts … becomes in effect one of total disobedience to Parliament’.

In fact, Anisminic did not have quite such a dramatic effect, because, at least at the time Anisminic was decided, ‘shall not be questioned’ clauses remained capable of protecting non-jurisdictional-but-reviewable errors of law on the face of the record. Nevertheless, Anisminic stands as a clear example of precisely the phenomenon with which I am concerned: namely the capacity of fundamental constitutional principles such as the rule of law and the separation of powers to shape judicial construction of legislation because, in the first place, those concepts sit in relationship with and inform the content and shape of the doctrine of parliamentary sovereignty itself. It may well be that the interpretive approach adopted in Anisminic and Evans challenges an absolutist conception of parliamentary sovereignty, given that they go (well) beyond giving effect to the ‘plain words’ of the relevant legislation. It may even be—as I acknowledge in my Public Law article—that cases like Anisminic and Evans repudiate even a relative conception of parliamentary sovereignty, on account of the possibility that they may invest other constitutional principles with such force as to cause them not to sit in relationship with, but to overwhelm, the sovereignty principle. Either way, however, Anisminic stands as evidence that circumstances can and do arise in which the courts’ commitment to an absolutist conception of the supremacy of Parliament is tested. As a result, speculating about the circumstances in which that might happen in the future hardly seems unwarranted.

My article on the Evans case—‘A Tangled Constitutional Web: The Black-Spider Memos and the British Constitution’s Relational Architecture’—was published in Public Law in October 2015. A pre-publication version of the paper can be downloaded here.