Bell, Elliott, Varuhas and Murray (eds): Public Law Adjudication in Common Law Systems: Process and Substance

9781849469913In September 2014,together with my colleagues John Bell, Jason Varuhas and Philip Murray, I co-convened a conference in Cambridge on the subject of Process and Substance in Public Law—the first in a series of major international conferences on public law. Hart Publishing has now published Public Law Adjudication in Common Law Systems: Process and Substance, a collection of essays based on a selection of papers that were delivered at the conference. Like the conference itself, the book reflects the fact that while those from common law jurisdictions share background understandings, significant differences between such systems create opportunities for valuable exchanges of ideas and debate.

The book draws upon one of the principal sub-themes that emerged during the conference—namely, the way in which relationships and distinctions between the notions of ‘process’ and ‘substance’ play out in relation to and inform adjudication in public law cases. The essays contained in this volume address those issues from a variety of perspectives. While the bulk of the chapters consider topical issues in judicial review, either on common law or human rights grounds, or both, other chapters adopt more theoretical, historical, empirical or contextual approaches. Concluding chapters reflect generally on the papers in the collection and the value of facilitating cross-jurisdictional dialogue.

The second conference in the Public Law series, The Unity of Public Law?, will take place in Cambridge from 12 to 14 September 2016. Further information about that conference can be found here.

Revising for your 2015 Public Law exam? Here are some of this year’s key developments and blog highlights

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.

Human-rights reform

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.

Carlile

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.

Pham

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.

Evans

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.

Revising for your 2014 Public Law exam? Here are some of this year’s key developments and blog highlights

If you are studying Public Law (or Constitutional Law) this year, you will know that it is a fast-moving field. And if you are currently revising for an exam in this area, you will no doubt want to put yourself in a position to show that you appreciate the dynamism of the subject. Kept within reasonable limits, this is a good idea—not only because demonstrating knowledge and understanding of cutting-edge developments may be impressive in itself, but because engaging with such matters may help to deepen your appreciation of more enduring aspects of the discipline.

At the same time, however, it is necessary to keep these matters in perspective. The recent development which transforms the subject area, turning it on its head, is a rarity; it is important, therefore, not to become fixated with the latest case, judicial lecture or official report. For the most part, the real value of such things lies in the light they cast—and the ways in which they might consolidate or deepen your understanding of—key principles, institutions and concepts.

Subject to that caveat (and one other), this post highlights some key developments this year in Public Law and attempts to place them in context by demonstrating the ways in which they form parts of broader debates and narratives. The other caveat is that what follows makes no claim to comprehensiveness: rather, it reflects developments that have caught my attention this year and have therefore been the subject of posts on this blog, and which, I think, help to illuminate or place in context fundamental matters that are typically studied by Public Law students.

Human rights

As the next general election approaches, the future of the Human Rights Act 1998—and even the UK’s involvement in the European Convention on Human Rights—is increasingly in the spotlight. Although it is well over a year since the report of the Commission on a Bill of Rights was published, debate about the HRA and the ECHR has not abated (not least because the Commission’s report was so inconclusive, thanks in no small part to the fact that the Commission was paralysed by disagreement).

It is no surprise, therefore, that Senior Conservatives—in particular, Chris Grayling, the Lord Chancellor and Justice Secretary, and Theresa May, the Home Secretary—were falling over themselves at the party’s conference in September 2013 to criticise the HRA and the ECHR, with Grayling promising to scrap the former and hinting at the possibility of withdrawal from the latter.

However, political and media debate in this area is often ill-informed; if change really is to be contemplated, then it is necessary to think about what that might look like and what the options might be. I explored the different paths that might be taken by a future government seeking to enact reform in this area in a post published last autumn, arguing that four scenarios were worth considering, reflecting two key variables—namely, whether the HRA is replaced with further domestic legislation, and whether the UK remains a member of the ECHR.

One of the main reasons why debate in this area tends to be unsatisfactory is the tendency to run together three interrelated but distinct issues. In a post published in December, I showed that an informed and intelligent debate must distinguish between three different dimensions of the relationship between UK law and the ECHR, concerning the domestic law position, the international law position, and the wider political issues.

For further background on past, present and future of human rights law in the UK, see my post on Law, Rights and Constitutional Politics, and the book chapter (available online) to which that post refers.

The common law and human rights

When the future of human rights protection is debated, a crucial factor that is often overlooked is the role of the common law and the extent to which the domestic constitution—although “unwritten”—embodies fundamental values and rights. Over the course of the last year, the UK Supreme Court has delivered three highly significant judgments that speak to this issue. One of those cases is dealt with below, in the section on EU law and the UK constitution, but the other two can be mentioned here.

In Osborn v Parole Board [2013] UKSC 61, the Supreme Court was asked to decide whether three prisoners had been unlawfully treated by the Parole Board when decisions to keep them in or recall them to prison were taken without according them oral hearings. Lord Reed, giving the sole judgment, said that the appellant prisoners’ advocates had erred by basing their submissions primarily upon Article 5(4) ECHR whilst largely neglecting domestic administrative law. The focus, he said, should have been upon the latter—and the rights that are recognized at common law. This was so because the HRA “does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate”. As I argued in my post on Osborn, Lord Reed’s analysis suggests that repeal of the HRA—and even withdrawal from the ECHR—may be less effective than proponents of such reforms anticipate. This follows because the common law—including rights derived from the ECHR but absorbed into the common law—would remain even in the event of HRA repeal/ECHR withdrawal.

A similar approach was evident in the Supreme Court’s decision in Kennedy v The Charity Commission [2014] UKSC 20. As in Osborn, the Court—in spite of the claimant’s reliance upon the right to freedom of expression under Article 10 ECHR—chose to decide the case by reference to common law rights and values. I suggested in my post on Kennedy that it can be understood as part of a new stream of constitutional jurisprudence emerging from the Supreme Court, and evidences a renaissance in this area, as common-law constitutionalism emerges from the shadow of the Human Rights Act.

Reading cases like Osborn and Kennedy, it is hard to resist concluding that senior judges are laying the ground for possible HRA repeal and ECHR withdrawal, and that, in doing so, they are ensuring that the underlying common law landscape that would be laid bare in such circumstances would turn out to embody a set of human rights protections comparable to those that obtain today.

EU law and the UK constitution

The third in the trilogy of Supreme Court cases referred to above is R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3. The facts are set out in more detail in my post on the case, but the essential question was whether the procedure by which decisions concerning the construction of the proposed “HS2” high-speed rail network were to be made could be challenged on the ground that it breached requirements laid down in an EU Directive. The primacy of EU law would normally supply a ready answer to that question, but the difficulty in this case was that the procedure being followed involved the decision being made by Parliament. Even Acts of Parliament, of course, are not immune to challenge on EU law grounds, as the Factortame case illustrates. However, a further difficulty in this case was that a challenge to the procedure adopted by Parliament might have required the court to assess the adequacy of that procedure by reference to Directive’s requirements. And this, as Lord Reed observerd, might have impinged “upon long-established constitutional principles governing the relationship between Parliament and the courts, as reflected for example in article 9 of the Bill of Rights 1689”. In the end, the Court concluded that no such constitutionally-problematic scrutiny of parliamentary procedure was necessary.

But what if it had been? Could EU law override a fundamental constitutional principle such as the one reflected in article 9 of the Bill of Rights? The Supreme Court doubted this, on the ground that Parliament, when it gave force to EU law by virtue of section 2 of the European Communities Act 1972, should not be taken to have intended to give EU such a degree of force as to permit it to ride roughshod over fundamental constitutional principles or legislation. As I explained in my post on the case, this suggests that EU law has been accorded only a qualified primacy which enables it to prevail over most domestic law, but not over fundamental constitutional law. It also suggests that the binary distinction between constitutional and regular statutes identified in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) needs to be rethought—some constitutional statutes (such as the Bill of Rights) arguably being more fundamental than others (such as the ECA 1972).

The constitution, the role of the judiciary and parliamentary sovereignty

Taken in combination, Osborn, Kennedy and HS2 paint a fascinating picture of the common law constitution. It remains (as always) a work in progress, but the direction of travel seems clear, as senior judges exhibit an increasing willingness to expose and rely upon the structure and norms of that constitution, sometimes in preference to its more explicit statutory aspects. Against that background, a lecture given by Lord Neuberger earlier this year on “The British and Europe” contained some particularly puzzling statements about the constitution. In fact, Lord Neuberger went as far as to suggest that the UK “has no constitution as such at all”. He said that in the course of trying to explain what he characterized as exceptionalist British attitudes towards the EU and the ECHR, arguing that the existence of parliamentary sovereignty and (as he sees it) the absence of a constitution means that European laws are able to exert a more profound and obvious influence in the UK than in countries that have written constitutions which may operate to limit the domestic impact of European laws.

Lord Neuberger certainly has a valid point. However, as I said in my commentary on his lecture, he arguably fails to give due credit to the subtleties of the modern British constitution highlighted by cases like Osborn, Kennedy and HS2. None of those cases is inconsistent with parliamentary sovereignty, and none suggests that the UK has a constitution (although unwritten) that is hierarchically superior in a way that absolutely limits the authority of Parliament or the impact of European laws whose effect in the UK is licensed by Act of Parliament. However, as noted above, those cases do suggest that, parliamentary sovereignty notwithstanding, there exists a hierarchy of norms within the constitution that may inform our understanding of the effect of (among other things) European laws. This is not to suggest that there are not important differences between the British constitution and those of other European countries—but the differences may be more subtle than a wholly orthodox account of the UK’s constitution would suggest. These issues are explored in greater depth in my post on parliamentary sovereignty in a multidimensional constitution and in the evidence I submitted to the House of Commons Political and Constitutional Reform Committee on the implications for parliamentary sovereignty and the judicial role of adopting a written constitution.

Judicial review reform

For the last 18 months, there has been considerable debate about judicial review reform, driven by a perception on the part of the government that judicial review can have a negative administrative and economic impact by slowing down decision-making processes and holding up major infrastructure and other projects of economic significance. The most recent set of proposals, published in September, are summarized in this post.

One of the proposals was to limit standing in order to prevent judicial review from being sought by campaign and pressure groups. I argued in this post that such a change would be wholly inappropriate, not least because it fundamentally misunderstands the purpose of judicial review which extends beyond the protection of individual “rights” and encompasses the promotion of good administration, in which everyone—not just victims of particular instances of maladministration—has a shared interest. A similar position was adopted by Baroness Hale in a lecture she gave in November.

The proposal concerning standing was dropped, but many of the others are being taken forward, as I explained a post published in February. More recently, the parliamentary Joint Committee on Human Rights has published its report on The implications for access to justice of the Government’s proposals to reform judicial review (HL 174 HC 868 2013-14). It is highly critical of the Government’s latest proposals. For a summary of the main points made in the report and a commentary on them, see this post published in April 2014.

Judicial review generally (and substantive review in particular)

Finally, there have been some interesting developments in relation to substantive judicial review. These have particularly caught my attention because I am currently co-editing a book on that subject, and have been writing a chapter for the book about how we should think about the relationship between the Wednesbury and proportionality tests and the role of deference; a preliminary version of my argument can be found in a piece I posted in September.

Similar issues were explored by Lord Carnwath in the 2013 annual lecture to the Constitutional and Administrative Law Bar Association. Carnwath was highly critical of much of the current law in this area, but, in doing so, retreated into a highly practical—and arguably unprincipled—approach. In my commentary on Carnwath’s lecture, I argued that the approach he adopted in it risked dismantling the conceptual apparatus of this part of administrative law, and that (legitimate) dissatisfaction with current doctrine should not lead us to abandon attempts to secure doctrinal coherence in this area, but should instead cause us to think harder about what the law is trying to achieve and what doctrinal vehicles are best suited to delivering that.

Finally on this point, three particularly interesting cases have been decided recently. First, in R (Rotherham MBC) v Secretary of State for Business, Innovation & Skills [2014] EWHC 232 (Admin), the Administrative Court applied what is known as the “super-Wednesbury” test (that is, an especially deferential version of the rationality test) and held that the proportionality test was ill-suited to situations in which no “specific legal standard” had been infringed. As I argued in my post on the case, its significance is twofold: it rejects the view, advanced by some commentators and judges, that proportionality should wholly supplant Wednesbury, and affirms that variable-intensity Wednesbury remains part of contemporary administrative law.

Second, in Miranda v Secretary of State for the Home Department [2014] EWHC 255 (Admin), the Divisional Court considered the structure of the proportionality test. It followed the version of the test advanced by Lord Sumption in Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39, including a final “fair balance” stage. As noted in my post, Laws LJ offered some perceptive comments in Miranda on the implications of fair-balance review, observing that the nature of the issues with which the court must engage at that stage are especially sensitive, and raise particular questions about the proper limits of the judicial role. These comments are to be welcomed, not least because they lay the foundation for a more structured approach to proportionality and deference—something for which I have argued elsewhere.

Third, Kennedy v The Charity Commission [2014] UKSC 20 is significant in this context, as well as for the reasons mentioned above. It contains an interesting discussion of the extent to which proportionality should be considered a common-law principle of judicial review. For detailed commentary, see this post.

Final thoughts

As noted at the beginning of this post, knowing about what is going on in Public Law is important not (only) for its own sake, but because of the light it casts on the fundamentals. In turn, appreciating what those fundamentals are—and how they might be impacted or illuminated by recent developments—requires an understanding not just of the detail of the subject, but of how its different parts relate to one another. Recognizing how the different pieces of the jigsaw fit (or sometimes do not fit) together is key to succeeding in Public Law, a bird’s-eye view of the subject being just as important as a grasp of the detail. If you find yourself struggling in this regard, you might like to look at the first chapter of the new edition of Elliott & Thomas, Public Law (available free of charge here), or at my videos on An Introduction to Public Law by way of the Belmarsh Prison case.

Now available: Second edition of Elliott & Thomas, Public Law

The second edition of Public Law – the textbook that I write with Robert Thomas – has been published by Oxford University Press. Although it is only three years since the first edition was published, much has happened since then. We were putting the finishing touches to the first edition in the immediate aftermath of the 2010 UK general election, whereas we are now well over halfway through the UK’s first period of peacetime coalition government for many decades.

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New Law student? Here’s some advice to get you started

The following post was written by Jack Williams as a letter to his fresher self. Jack studied Law at St Catharine’s College, Cambridge, and is now a barrister at Monckton Chambers. 

So, you’ve started your Law course, and you’re already feeling a little snowed under. You’ve never studied Law or anything even like it before and never felt quite this challenged by something. You’re beginning to question whether you’re ‘doing it right’, and want some suggestions about how you might go about your studies to maximise your grades. So, having now completed my Law degree, if I were to write to my fresher lawyer self, this is what I’d say.

First, Jack, there is certainly no golden one answer about how to study Law or go about your studies: everyone learns differently and everyone enjoys different topics. Therefore do what works for you; ask and take everyone’s advice on board – they’re trying to help and there’s no shame in asking – but always remember that you’re the one trying to learn and it’s you who’s going to be taking the exams at the end of the year. Have confidence in yourself.

Second, you’re bound to make mistakes. Jack: you’ve never studied Law before, you’ve never been to University before, and you’re here to learn. You’re not meant to know everything at the age of 19. You learn by doing – take a risk and try it out. The process of finding out how you learn best and the sometimes gruelling effort you have to put in to learn how to learn Law will be incredibly beneficial and personally fulfilling. It will all click into place; it will happen – once you’ve mastered it, everything becomes so much easier and reading the next chapter, article and case becomes quicker and easier. Keep going and believe in yourself. Don’t keep on doing things that obviously aren’t working.

Working effectively

Third, simply cramming and rushing to finish everything for a supervision or a class is rather foolish if that means that you’re skipping material and not really thinking about what you’re reading and contrasting academics’ and judges’ viewpoints with your own. You shouldn’t be treating supervisions or classes as the end goal or a test; instead you should treat supervisions as part of the journey. The end of the journey is your complete understanding (and ultimately the exam). This all means that you should be smart about what you aim to get out of your supervisions or classes – they’re there to help you. This approach will mean managing your time carefully and being methodical about what you cover and when. It is not an excuse for not doing the work. It might, though, mean that you cover some of the work after the supervision itself – check what’s on the handout and what’s going to be focused on. Doing the reading properly once (instead of cramming/rushing for the supervision and having to come back in the holidays to start from scratch when you’ve forgotten most of it) will actually save you time and aid your understanding as you’re working on the topic as a whole at one time. It will enable you to see the topic in the round. To master this approach you should be aiming to really comprehensively study the topic the first time round – this means also working from your lecture notes and reading all the extra material and further reading. This will mean you have to look at the whole reading list at the start and split it into the individual topics; warning – this might mean working from different parts of different books/chapters at one time instead of going through one resource at a time.

Fourth, don’t simply highlight your textbooks. A good approach is to type your lecture notes (which saves a lot of time, are easier to read, and are quicker to edit) and you can then add your textbook notes to them. This reduces unnecessary duplication. You should read the textbooks and reading list material alongside your lecture notes as you go (even if lectures aren’t finished) and add textbook notes to lecture notes. You will then have one very comprehensive document which is much better than a variety of different sources and notes with lots of duplication. This will save you time when you come to revise! When it comes to articles (which you absolutely must read – you won’t be able to answer essays otherwise!), you should print these all off (double sided will save paper and money and time printing!). These you should highlight. You should also dot little notes on them. Then leave space in the relevant place in your lecture/textbook document so that when you print them off you can slot the articles into the right places. Highlighting/doodling on articles instead of typing them up like you do the textbooks will save you a lot of time which will enable you to read more. The more articles you read, the quicker it becomes as many have duplications and basic case facts and ideas repeated. Also not typing up articles will mean that you still have the original – you may find you missed out crucial threads of arguments when you come back to revise! Putting a two line summary of the main argument at the top of the printed article will also help.

Cases

Fifth, Jack, before you read the cases, make sure that you’ve read the relevant textbook sections and search your reading list and Westlaw for other case commentaries (especially if your reading list didn’t include any short summaries for the cases it specifically asks you to read). This will enable you come at the case with a very clear idea about its topic and content. It might even save you from reading the whole case if the commentaries were very clear and include judges’ names and arguments. In any case, it might make reading the case much easier and you’ll have some academic opinion to think about and point you towards the right places so you know what you should be thinking about or focusing on.

Sixth, as you’re studying you should be looking to assign a case name or statute to every statement of law you note down, and an academic’s name to every opinion or comment on the law (unless it’s your own theory – and no other academic has previously written it down!). Lecturers’ comments are not authorities. When you’re making your notes, if you ensure the case and academics’ names are all down the left-hand side of the page, when you come to revision you’ll be able to cover them up and test yourself. Aim to be making your notes in a nice format which is revision friendly from the start. I also recommend tabbing your statute books throughout the year and colour coding your tabs by topic/area so exam utilisation (if required at all) is more efficient. (Remember, though, to check with your own Law school whether this is allowed: some Law schools only allow “clean” statute books in exams.)

Seventh, I’ve already hinted at this to you, Jack, but you really need to be doing as much of, if not all of, the further reading– at the same time as the other reading preferably. Otherwise make a (clear and easily-findable) list of everything to do in the holidays – make this as you go along, you honestly won’t remember otherwise.

All work and no play …

Eight, continue to go out and enjoy yourself – if you time-manage well enough, you will still have enough time to play a sport, go out a couple of evenings a week and hold a number of extra-curricular positions! In fact, you’ll end up being a lot more time-efficient and stop wasting time/procrastinating as much as you did. You’ll also enjoy and appreciate your studies a lot more – the happier you are, the easier you’ll find it to study. You might, oddly, find out that the more you do, the better your grades become…

Nine, be active with law. The more you engage with it, Jack, the more it’ll make sense. Getting active with law means a number of things: not just sitting and passively reading, but actively thinking about it (i.e. factual situations and what the ‘answer’ in court may be), mooting, going to all the additional evening lectures your university offers, and emailing supervisors and friends.

Collaborate

Ten, continue to work with your friends. Form a study group – share around further reading notes, set each other extra articles not on reading lists and then share the notes around. Meet up before your supervisions or classes 15 minutes before to run over a couple of things. Perhaps even arrange small revision groups together. Definitely have a group mailing list! Remember you’re not in competition with mates. Instead, by sharing notes, sharing thoughts and working together on past exam questions you’ll be able to test your knowledge, get other ideas, get through so much more material than you could have on your own and it will mean you’re much more active with law. It also makes studying a lot more enjoyable and will mean you save a lot of time struggling through alone. Warning though – this is not an excuse for not doing the work yourself (especially the material on your reading lists marked ‘essential’ or ‘basic’): you absolutely must be doing the ‘building block’ work yourself; group study is superb for going beyond your reading lists and for revision of all kinds though!

Eleven, it’s a great idea to be thinking about the exam throughout the whole year. At the beginning of the year, print out all of the past exam papers and examiners’ reports. After you read through each handout or reading list, look through all the exam papers and label the questions for that supervision or class. This will enable you to know what to look out for or what sorts of issues to focus on when you do the reading. It’ll also help to give you an idea of what sorts of things to take notes on. If you don’t know how to answer the question by the end of your reading, or don’t know where to look in your notes, then remember to take the exam question along to your supervision or class and ask your tutor about it.

Stay up to date

Twelve, keep up with the legal news. The best way to do this is to read blogs (such as Public Law for Everyone for constitutional law and McBride’s Guides for tort) and to use Twitter to follow legal academics, bloggers, your law faculty, the courts, other law students and barristers. Retweet everything that looks useful and relevant and then go back to read when you have more time.

Thirteen, if you’re finding life tough, speak to people – your tutor, supervisors, Director of Studies, lecturers or even your law society president. Never be afraid to admit you don’t understand something or to ask for help. When it comes to academics, before you email them do make sure you’ve honestly tried hard and looked your legal question up as best you can – they won’t appreciate it otherwise!

Exams

Fourteen, in exam term, have a game plan. Aim to read through all the notes at least twice. Then make several essay plans per subject – throughout the year you should have noted key essay topics for each topic as you went through (utilising past papers, your own common sense on what the debateable areas in that topic are, what lectures focused on, what’s new or in the legal news, and what you enjoy/understand the most). Ensure your essay plans have lots of case and academic names; make sure you’ve gone beyond lecture notes by looking at the latest editions of all the law journals. After that, then make condensed hand written notes based on your full notes. Then keep on re-reading everything again and again and again and again…. However, you cannot simply be passive and just read though – after you read each page you need to test yourself in your head: cover up the case or academic names. Then, for ones you keep forgetting or getting wrong maybe make some posters and some flashcards. Also make sure, however rough or illegibly, that you have written each case name and academic name at least once so you know how to spell it and also test yourself that you’ve remembered it.

Fifteen, in your exams:

  • Always cite case names; always underline case names.
  • Put judges’ names in – even if you simply cite a case name, dicta and then put “(per Williams LJ)” (even as a student you can dream!).
  • Always put lots of academics’ names in. Academics’ names plus year of article is even better (i.e. “As Williams (2012) rightly argued…”) or just bracketed after a long sentence (e.g. “The law of equity is really difficult (Williams, 2012)”. Another thing to remember is that if you’re not just putting the academic name after a general sentence concerning a point you’re attributing to them by putting them name in brackets, then you should put words like “rightly”, or “convincingly” or “lucidly” or “correctly”. This will show that you’re engaging with them and not just regurgitating their names and ideas.
  • Write what you think will be your best answer first, your second best second, etc.Also don’t be scared about doing any Section B’s first, or any part (c)s before part (b)s etc. Doensure that you label clearly though – the examiner is unlikely to appreciate it if she has to navigate a script with lots of arrows pointing the way between different parts of your answer.
  • Make sure that it’s very clear where your answer to one question ends and where your answer to the next question beings.
  • Plan. This might only have to be for a minute if you’ve learnt your essay plans well enough and are lucky enough for one vaguely related to come up.(But remember that the examiner will want to read an answer to the question she has asked: don’t just regurgitate a prepared essay unless you’re asked exactly what your essay plan relates to – you  are very likely to have to adapt it and think on your feet, but at least you will have got the relevant material and some sort of order in mind.) Write 8 or so bullet points i.e. one for each main point plus an introduction and conclusion.
  • Remember that your introduction must be your conclusion; it must answer the entire question in one paragraph and it must contain each main point your essay will make i.e. it is basically your one minute essay plan! If you treat your introduction like an essay plan and a bit like an interview oral question which you have to answer in literally a minute or two in a nutshell you will do well and your essay will flow nicely and have structure.
  • Aim for absolute clarity – use pointers like ‘first’, ‘second’ and ‘in conclusion’ to thread your argument together; this will make reading your script easier for the examiner and also demonstrate a logical approach to the question.
As Jack notes at the beginning of this post, there is no magic bullet. Studying Law – and learning how to study Law – is not easy at first, and there are many different possible approaches. This post reflects Jack’s own views, and what worked for him.