Judicial review reform IV: Culture war? Two visions of the UK constitution

This is the final in my series of four posts concerning the Report of the Independent Review of Administrative Law (IRAL) and the Government’s Response to it. Focussing particularly on the direction of travel that is envisaged in the latter, I have addressed the potential implications for the doctrine of nullity, the efficacy of ouster clauses and the courts’ role in respect of substantive judicial review. The concern of this last piece in the series is broader. In it, I will argue that the position staked out by the Government in its Response brings into focus two competing visions of the UK constitution — and that forcing confrontation between them may ultimately amount to an existential threat to current arrangements, which have a Heath Robinson quality to them that requires certain matters to remain unconfronted, or at least unresolved.

Constitutional vision I

On one view of the UK constitution, judicial review — and, for that matter, pretty much everything else — is at the mercy of Parliament. The constitution falls to be viewed through the prism of parliamentary sovereignty — a concept that is to be understood as dominating the constitutional landscape. To the extent that other constitutional principles, such as the rule of law and the separation of powers, are acknowledged on this view, they are understood in terms that are necessarily diminished by their relative inferiority to the all-important — indeed, all-conquering — notion of parliamentary sovereignty. (A similar point, but not one that is of direct relevance to the current argument, might be made regarding the constitutional principle of devolved autonomy that the Government, using the vehicle of parliamentary sovereignty, has recently shown itself willing to disregard through non-adherence to the Sewel Convention.) According to this narrative, then, judicial review, and the courts’ role in relation to it, is inherently conditional upon legislative acquiescence — and is therefore necessarily vulnerable to modification, attenuation and even, at least as a matter of strict logic, abolition.

The Government’s Response to the IRAL Report is shot through with the foregoing vision of the constitution. The tone is set in the foreword, in which the Lord Chancellor and Justice Secretary refers to ‘the role of the courts as “servants as Parliament”’, underlines ‘the role of Parliament in creating law and holding the executive to account’ and asserts that ‘the executive should be confident in being able to use the discretion given to it by Parliament’. The implications of these views are at least threefold. First, an institutional picture is presented in which the courts are subservient. Second, and moreover, the courts are posited as a potential threat to an implicitly preferred constitutional worldview in which Parliament and the Executive are left to get on undisturbed with their respective tasks of legislating and governing. And, third, the capacity of courts to insert themselves into, and thereby potentially to disrupt, this natural constitutional order is conceived of in contingent terms, the subtext being that if the courts stray too far, the sovereign authority of Parliament can legitimately be harnessed to put them back in their place. These themes are then amplified in the body of the Government’s Response, finding resonance (among other things) in the Government’s position that the courts’ current approach to ouster clauses is improper because (in effect) the constitutional resilience with which it invests judicial review represents a breach of cardinal requirement of curial obeisance to Parliament.

This vision of the UK constitution is unrelentingly one-dimensional, a particular conception of parliamentary sovereignty leaving little meaningful scope for other, potentially competing, constitutional principles. The upshot is that any regard that is had to such principles can amount to little more than lip-service. This, too, is abundantly clear from the Government’s Response. The Government asserts that ‘the rule of law matters’, but this rhetorical commitment inevitably rings hollow in the light of the specific proposals — including the reinvigoration of ouster clauses and the hobbling of the remedial regime through prospective-only quashing — that are set out in the Response. It also rings hollow because the commitment to the rule of law that emerges from the Response is a distinctly lop-sided one that emphasises that importance of legal certainty (and associated administrative convenience) while paying scant regard to the principle of legality, which demands both positive legal authority for governmental action and independent judicial oversight in the event that such authority is questioned. Eviscerating the doctrine of nullity — and thereby, in practice, conferring a veneer of legality on unauthorised administrative action that may no longer be open to retrospective quashing — is hardly compatible with a meaningful commitment to the rule of law in its full sense.

Constitutional vision II

Importantly, however, the vision of the constitution that is put forward by the Government is by no means an uncontroversial or generally accepted one. In particular, it can be contrasted with a richer conception of the constitution in which the notion of parliamentary sovereignty is understood as forming part of a network of interlocking and mutually reinforcing constitutional principles. Looked at in this way, the institutional position of the courts, and the constitutional status of judicial review, take on a different complexion. This point can readily be made by reference to the pronouncements, judicial and otherwise, of Lady Hale. Relying upon Lady Hale’s views in this context seems especially apposite given that the Government, in its Response, notably relies on the evidence that she submitted to the IRAL in order to paint its preferred picture of the constitution. However, as we will see, this is misleading both because Lady Hale is inaccurately quoted in the Response and because the position attributed to her sits highly uncomfortably with the views that she, along with many others, has advanced elsewhere.

The passage quoted above from the Lord Chancellor’s foreword, in which it is said that the courts are ‘servants of Parliament’ is itself an implicit reference to Lady Hale’s submission to the IRAL. However, it is important to note that both the Lord Chancellor’s foreword and the Response itself present, at best, a misleading impression of what Lady Hale actually said. In her submission, she said: ‘In the vast majority of cases, judicial review is the servant of Parliament.’ This is an entirely uncontroversial point, which reflects the fact that one of the core functions of judicial review is to confine those who exercise statutory authority within parameters laid down, explicitly or otherwise, in the relevant legislation. At no point, however, does Lady Hale say that the courts are the servants of Parliament. Thus, when the Response asserts that ‘the courts should ensure they remain, as Lady Hale put it, “the servant of Parliament”’, this is, at the very least, misleading.

This point has also been noted by Lord Carnwath, who goes on to say that: ‘The courts are not mere servants of parliament but essential partners in the constitutional balance that underlies the rule of law.’ This notion — of a partnership of constitutional and institutional equals, as distinct from a hierarchical relationship implying judicial subservience — captures the second of our two competing visions of the constitution, and one that sits in stark contrast to the first. It is of a piece (unsurprisingly) with Lord Carnwath’s remarks in Privacy International, in which he doubted Parliament’s capacity to oust judicial review, arguing that Parliament ‘cannot entrust a statutory decision-making process to a particular body, but then leave it free to disregard the essential requirements laid down by the rule of law for such a process to be effective’. More expansively still, he contended that ‘it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review’. In a similar vein, Lady Hale, in Jackson, said that: ‘The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny.’ It need hardly be pointed out that that does not envisage the courts as servants of Parliament.

What if?

This is not, of course, the place in which to attempt to settle the question as to which of these two visions of the constitution is the better, or more accurate, one. Rather, my purpose in sketching these competing views is twofold. First, the existence of the competing view underlines that, in its Response, the Government offers a view of the constitution that is partial, selective and ultimately contestable, with assertion masquerading as fact. Second, and just as importantly, the existence of these two constitutional visions raises a further question concerning the relationship between them — and, relatedly, about how the tension between them might ultimately be resolved. In truth, however, to pose that question — or, at least, to pose the question in that way — rather misses the point. The fact that these two constitutional narratives exist in parallel is not a weakness but a strength. Far from presenting a problem that needs to be solved, or a choice that must be made, the co-existence of the two constitutional visions is testament to the contestability and uncertainly of the UK’s constitutional order that amount to essential characteristics of it. In the absence of clearly tabulated ground rules set forth in a codified constitutional text that is imbued with special legal status, the institutions of government in the UK hold, and must hold, one another in creative tension.

One of the critical forces giving rise to that tension is the very uncertainty that obtains in respect of ‘what if?’ questions. What if the courts were to strike down an Act of Parliament for affronting basic constitutional values? What if Parliament were to launch a full-frontal assault on the rule of law by attempting to shield swathes of administrative authority from judicial scrutiny? The very fact that such questions remain unconfronted, and the answers to them uncertain, is vital to the effective functioning of the UK’s unusual constitutional arrangements, under which the boundaries of judicial, executive and legislative authority are ultimately a function of institutional interaction, negotiation and comity. The very uncertainty as to what (quite possibly dire) consequences would attend a breakdown in such comity is the most powerful factor that, to begin with, guards against such disintegration.  

Viewed against this background, the muscularity of the Government’s Response to the IRAL Report — and, in particular, its vigorous articulation of a constitutional narrative that seeks to render the courts subservient — is telling. It implies, at best, a lack of insight into what it is that ultimately enables the UK constitution to operate effectively (to the extent that it does so). But it most likely implies something more than that. Indeed, it is difficult to read the Government’s Response without situating it in the context of the wider culture war that today bedevils political discourse in the UK (and elsewhere). It is hard to know whether the Government merely wishes to engage in constitutional-political grandstanding by sending a warning shot across the courts’ bows or intends, in due course, to force into the open the very questions upon whose largely unconfronted nature the constitution’s workability hinges.

How far this issue is ultimately pressed will doubtless depend on the depth of the Government’s political will and the extent of the political capital it is prepared to invest. Equally uncertain is what would happen if the Government were to press the matter as aggressively as its Response implies it might be willing. I am reminded, however, of an argument put forward by Lord Woolf in a lecture that he gave in 2004. Then, as now, tensions between the Government and the judiciary were running high, with an apparently Anisminic-proof (and subsequently withdrawn) ouster clause in an immigration bill the immediate flashpoint. Of that clause, Lord Woolf said:

I am not over-dramatising the position if I indicate that, if this clause were to become law, it would be so inconsistent with the spirit of mutual respect between the different arms of government that it could be the catalyst for a campaign for a written constitution. Immigration and asylum involve basic human rights. What areas of government decision-making would be next to be removed from the scrutiny of the courts? What is the use of courts, if you cannot access them? … The response of the government … to the chorus of criticism of [the ouster] clause … will produce the answer to the question of whether our freedoms can be left in their hands under an unwritten constitution.

Lord Woolf’s point was as simple as it was essential. It reduces to the insight that the effective operation of a constitution such as that of the UK ultimately turns upon the willingness of institutions and of constitutional actors to exhibit the characteristics of mutual respect, civility and comity. It relies, in other words, on ‘what if?’ questions never been pressed to the point of necessary decision. If such questions are now to be pressed to such a point, it would be foolish to attempt to predict the consequences with any confidence — but it is clear beyond doubt that those consequences would be profound.

I have developed some of the ideas set out in this post, according to which there are two competing and distinct visions of the UK constitution, in a series of lectures entitled ‘The Big Picture’ that I prepared for undergraduate Cambridge Law students studying Constitutional Law. I will be publishing a series of blogposts fleshing out this idea, along with videos of the accompanying lectures, in the coming weeks.