The Judicial Power Project has published a list of 50 “problematic” cases. It makes for interesting reading. The aim of the Judicial Power Project is to address the “problem” of “judicial overreach” which, it is said, “increasingly threatens the rule of law and effective, democratic government”. It is odd, therefore, to find on Judicial Power’s list of 50 “problematic” cases Liversidge v Anderson — which is criticised by the editors of the list as showing “excessive deference to the executive’s wide discretionary powers in wartime” and for “giving no effect to a statutory provision requiring the Home Secretary to have reasonable grounds for a detention decision”. The nub of the criticism presumably lies in the latter point, the argument apparently being that courts go wrong (and in that, rather strained, sense “overreach”) when they fail to take with sufficient seriousness limits upon executive power prescribed by Parliament, just as when they impose limits upon such power that go further than those intended by Parliament.

This is telling, in that it demonstrates the nature — and, I would argue, thinness — of the conception of the judicial function that is implicit in Judicial Power’s list of cases. The implication is that judges go wrong when they go further than whatever parliamentary intention requires, or when they fail to go as far as such intention requires, or when they otherwise do something that is inconsistent with parliamentary intention, or perhaps when they merely do something that is not consistent with manifested parliamentary intention. On this analysis, judicial legitimacy is synonymous with the implementation of legislative will. It would, of course, be foolish to argue that giving effect to legislation is anything other than a fundamental part of the judicial function. But the really hard questions that arise in this area are not about whether or not a court has given effect to the intention of Parliament (or the words of the statute). Rather, they are about what that intention is, or what those words mean — questions that can be answered only when the text is interpreted. And that process of interpretation may — and, I would argue, must — take place against the backdrop of a constitutional landscape whose richness transcends the principle of parliamentary sovereignty.

The fundamental question, then, is as to how that principle sits in relationship with other fundamental principles, including the rule of law and the separation of powers. I readily accept that that question invites contestable answers — and that the extent of the proper judicial role is equally contestable. But acknowledging that such things are contestable is itself crucial, as I argued in my response to John Finnis’s lecture on judicial power. This can be demonstrated by examining what the editors of Judicial Power’s list of 50 cases say about some of them, and contrasting Judicial Power’s accounts of those cases with alternative accounts.

AXA General Insurance Ltd v Lord Advocate

Judicial Power’s account: The Supreme Court speculates that Acts of the Scottish Parliament are subject to judicial review at common law, but not on the grounds of irrationality, unreasonableness or arbitrariness. Whilst suggesting that courts owe deference to the Scottish Parliament given that it is a democratically elected legislature, the Court nonetheless asserts that Acts of the Scottish Parliament that violated the rule of law would nevertheless still be struck down.

Alternative account: The Supreme Court affirmed that the Scottish Parliament is subject to judicial review, subject to such considerations, including considerations of deference on institutional and democratic grounds, as are fitting in respect of an elected legislative body. Judicial review is a principal vehicle for securing respect for the rule of law, and the susceptibility of the Scottish Parliament to judicial review is consonant with the fact that it is subject to the rule of law. Nothing in the Scotland Act 1998 displaces the courts’ inherent supervisory jurisdiction in respect of the Scottish Parliament.

R (Evans) v Attorney General

Judicial Power’s account: The Supreme Court ignores the limits of the judicial role by rewriting the Freedom of Information Act to effectively remove the power to prevent the publication of information that the UK Parliament had conferred on the Attorney General.

Alternative account: The Supreme Court interpreted the “Ministerial veto” power in the Freedom of Information Act 2000 in the light of the constitutional principles of the rule of law and the separation of powers. The Court concluded that the legislation, properly interpreted, sanctioned executive override of the judgment of a superior court of record only in very limited circumstances. Although the UK Parliament, being sovereign, could legislate so as to confer upon the executive override powers more generous than those which it has under existing legislation as interpreted in Evans, the Government has indicated that it will not seek to procure such legislation.

R (Nicklinson) v Attorney-General

Judicial Power’s account: Despite clear Strasbourg case law upholding legislation that bans assisted suicide, a majority in the Supreme Court were willing in principle to go beyond Strasbourg and to tell Parliament that the law on this contentious issue of public policy was contrary to Convention rights and should be reconsidered. The judgment invites further litigation.

Alternative account: The Supreme Court recognised that the position taken by the European Court of Human Rights on this matter was informed by the margin of appreciation doctrine, the purpose of which is to restrain the role of the Strasbourg court in situations in which its transnational status warrants deference to national authorities. A majority of the Supreme Court further recognised that as a domestic court, its role was not circumscribed by the margin of appreciation doctrine. A majority of the Court exhibited deference to Parliament, either by declining to conclude that UK legislation breached the ECHR or by declining to issue a remedy in the form of a declaration of incompatibility under the Human Rights Act 1998.

Anisminic Ltd v Foreign Compensation Commission

Judicial Power’s account: The House of Lords found the rejection of the claimant’s application for compensation by the FCC [the Foreign Compensation Commission] to be unlawful, despite legislation providing that “determination by the [FCC] of any application made to them under this Act shall not be called into question in any court of law”. The Law Lords held that the Commission had misinterpreted the criteria for compensation and, sidestepping the clear words of the Act, held that this error of law meant there was no “determination” but that instead the decision was a nullity. Judicial adventurism in Anisminic paved the way for Racal, where Lord Diplock, in obiter dicta, misinterpreted Anisminic to find that an administrative decision based on an error of law is automatically a nullity.

Alternative account: The Appellate Committee of the House of Lords decided that by misinterpreting the criteria for compensation, the FCC — an administrative agency established and given limited powers by statute — had committed an error of law. The Law Lords further decided that by committing the error of law in question the FCC had exceeded the limited authority conferred upon it by Parliament, and that a provision in the statute should not be interpreted so as to enable the FCC to commit errors of law with impunity, thereby effectively determining the extent of its own powers. The rule of law and the separation of powers require administrative agencies to be subject to the law as interpreted by the courts, and provisions in legislation that appear to cut across that fundamental constitutional principle should where possible, as in Anisminic, be construed accordingly.

Concluding remarks

I happen to prefer the alternative accounts set out above to the accounts offered by the editors of Judicial Power’s list of cases. But the purpose of this post has not been to argue that the alternative accounts are better. Rather, the point is to illustrate the contestability of these matters which, at root, turn upon a normative argument about how the three fundamental principles of the British constitution — the sovereignty of Parliament, the rule of law and the separation of powers — relate to one another. I explore that issue further in my Public Law article on the Evans case, a pre-publication version of which can be accessed here.