If proof were needed that a week can be a long time in politics, one would need to look no further than the events of the last seven days in the UK. Three matters during the course of the last week have vividly illustrated — individually, but more importantly collectively — an increasingly clear narrative in relation to the constitution and the UK Government’s approach to it. The matters in question are the call for evidence in relation to the Independent Review of Administrative Law, which was widely circulated at the beginning of the week, the publication of the Internal Market Bill, which, as I have explained in another post, if enacted will authorise Ministers to place the UK in breach of its international legal obligations, and, most recently, a report that Ministers are ‘drawing up proposals to severely curb the use of human rights laws in areas in which judges have “overreached”’. The overarching picture that emerges is of a Government intent on shielding itself from the application of legal standards, but each of these matters is significant in itself, and it is helpful to begin by taking them in turn.
The first may appear technical, even arid, to non-lawyers compared to its headline-grabbing counterparts, but it may in time prove to have the most durable and far-reaching effects. As I have written previously, the terms of reference of the Independent Review of Administrative Law raises the prospect of extensive and radical changes to judicial review, including codifying (and thus potentially narrowing) the grounds on which Government action can be questioned by courts; attenuating the range of matters that courts can examine by redefining the concept of justiciability; limiting the remedial consequences of successful judicial review claims; reducing the Government’s duty to disclose information in the course of judicial review proceedings; limiting who can initiate judicial review challenges in the first place; and altering the costs regime in a way that would make it financially more difficult for judicial review proceedings to be brought against the Government.
The underlying agenda is implicit in the press release accompanying the publication of the terms of reference: the overriding aim of the Review, we are told, is to consider ‘whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government’. The clear implication is that at present the ‘right’ balance is not being struck, that judicial review in its present form is an unwelcome inhibition upon ‘effective and efficient government’, and that the balance needs to be struck more firmly in favour of what the Review’s chair, Lord Faulks, refers to as the Executive’s ‘right to govern’. That comment is a telling one, given that that ‘right to govern’ exists only within the parameters laid down, and pursuant to the powers granted, by law as enacted by Parliament and interpreted and applied by an independent judiciary.
As Laws J put it in R v Somerset County Council, ex parte Fewings [1995] 1 All ER 513, whereas individuals ‘may do anything … which the law does not prohibit’, the ‘opposite’ rule applies to the Government: anything it does ‘must be justified by positive law’. The Executive’s ‘right to govern’ is thus not an inherent one but is rather a function of the enactment of legislation by Parliament and its interpretation by independent courts. In this way, as Sir Stephen Sedley put it (‘The Crown in Its Own Courts’ in Forsyth and Hare (eds), The Golden Metwand and the Crooked Cord (Oxford 1998)), ‘the functioning of executive government is subordinated to the approval of Parliament and the adjudication of the courts’, such that the relationship between the three branches of government ‘is the relationship demanded by one of the most fundamental of all our unwritten constitutional principles — that government is to be conducted within the law’.
Ultimately, then, the issue lying at the heart of the Review, and implicit in its underlying agenda, is a question about the extent to which it is constitutionally appropriate — and possible — for the Executive, through legislation enacted by Parliament, to weaken the legal control exercised over it via judicial review, thereby enhancing its contingent ‘right to govern’. In turn, if pressed far enough, that will test the claim advanced by Sedley (and others) that the legislative and judicial functions of the Crown are each — but are the only two — ‘sovereign functions of the Crown’, such that the capacity of the Executive, including through legislation, to expand its ‘right to govern’ is, in the final analysis, legally finite. If that issue becomes a live one, it will give rise to a constitutional crisis whose outcome it would be naïve to attempt to predict with any certainty.
The second of this week’s developments concerns the Internal Market Bill — and, in particular, the provisions of it that, if enacted, would equip Ministers to make regulations that would place the UK in breach of its obligations in international law under the EU Withdrawal Agreement and the Northern Ireland Protocol. This development is, however, far from entirely separate from the first, given that the Bill also includes a breathtakingly wide provision that appears to attempt to immunise such regulations against judicial review on any ground. In this way, the broader picture painted by this week’s individual developments begins to come into sharper focus: namely, a multi-pronged initiative that is concerned with enhancing executive authority by attempting to limit the capacity of law — whether domestic or international — to condition the exercise of that authority.
If there was any room for doubt that this amounts to a full-frontal assault on the fundamental constitutional principle of the rule of law, such doubt is removed by recent Ministerial pronouncements on this matter. In a facile ‘legal position’ paper published a few days ago, the Attorney General freely acknowledged that the Bill would allow Ministers to breach international legal obligations while incoherently attempting to justify such a course of action by reference to the purely domestic concept of parliamentary sovereignty. To make matters worse, the Attorney General went on to invoke the judgment in Miller I [2017] UKSC 5 support of her position, notwithstanding that in that case the Supreme Court stated that ‘treaties between sovereign states have effect in international law and are not governed by the domestic law of any state’, thereby underlining the incapacity of domestic law of constitutional doctrine to excuse a breach of international obligations.
If that were not enough, the Lord Chancellor — the Minister with lead, including statutory, responsibility for upholding the rule of law — has now said that he will resign only ‘[i]f I see the rule of law being broken in a way that I find unacceptable’, thus implying that some breaches of the rule of law, including this one, are perfectly acceptable. The underlying premise — that it is for Government Ministers to exercise discretion in identifying ‘acceptable’ and ‘unacceptable’ breaches of the rule of law — turns fundamental constitutional principle on its head.
Third, today’s report that the Government is planning ‘severe’ restrictions on the use of human rights law in order to correct perceived judicial ‘overreach’ is hardly new. Ten years ago, the Conservative Party promised to repeal the Human Rights Act 1998 and to replace it with a ‘UK Bill of Rights’ — an undertaking that ended up going nowhere as a result of disagreement within the 2010–15 Coalition Government. More recently, the Conservatives went into the 2019 election saying that they would ‘update the Human Rights Act’ in order to ‘ensure that there is a proper balance between the rights of individuals, our vital national security and effective government’.
It remains to be seen how this objective will be delivered and what the reported ‘curbs’ on the use of human rights legislation will end up looking like. However, it is far from speculative to suggest that the plans reported today may mark the beginning of process that may culminate in withdrawal from the European Convention on Human Rights. Indeed, Lord Faulks, who is leading the Independent Review of Administrative Law, has himself advocated precisely such a step, arguing that the UK should ‘leave the Council of Europe altogether, repeal the Human Rights Act and allow our own courts and Parliament to protect human rights’.
It does not follow that domestic law would be incapable of conferring effective protection on human rights. Critically, however, withdrawal from the ECHR would remove from the UK’s human rights regime any direct international law component — which at present serves, in effect, to disincentive the use of parliamentary sovereignty to override fundamental rights given that doing so would involve a breach of international law. Of course, Ministers’ new-found openness to the idea that some breaches of international law are perfectly acceptable casts all of this in a new light, but it is certainly the case that withdrawing from the ECHR would be a cleaner approach for those who consider judicial involvement in this field to have gone too far. More generally, such a strategy would be entirely of a piece with the wider narrative that emerges from the various developments sketched above: namely, a desire to enhance the Executive’s ‘right to govern’ by displacing or diluting the efficacy of independent judicial oversight, whether in the service of domestic or international law.
In conclusion, it is worth adding that the governmental strategy that is now in plain sight is not confined to curtailing judicial power. Parliament, too, is clearly regarded as a sometimes unwelcome inhibition upon the Executive’s ‘right to govern’, as the Government’s unlawful attempt to prorogue Parliament in 2019 attested. All of this leads on to a final, and wider, point. The UK’s highly unusual constitutional arrangements — which lack an entrenched constitutional text with a legal status superior to regular law — have always presupposed that those wielding authority will play by the (sometimes unwritten, sometimes non-legal) ‘rules of the game’. This calls for a form of inter-institutional comity that certainly does not preclude the various branches of government from testing the limits of their respective powers, but is does ultimately require a degree of restraint and mutual respect that is now self-evidently lacking on the part of an executive branch intent upon hoarding authority and prioritising its ‘right to govern’ above other critical considerations, including respect for parliamentary democracy and for the rule of law. History teaches that it is dangerous to assume that a written constitution is any sort of panacea. But recent events in the UK should, at the very least, prompt careful reflection about whether existing constitutional arrangements remain fit for purpose.
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