Tag Archives: Lord Sumption

Conor Gearty: On Fantasy Island: British politics, English judges and the European Convention on Human Rights

conorMy first encounter with the fantasies that underpin English public law came in the 1980s. I had just starting teaching constitutional law and was taking my first year students through Dicey: the independent rule of law; the availability of remedies to all, without fear or favour; the common law’s marvellous protection of civil liberties; how great we were, how terrible the continent; and all the rest of it. Outside the classroom, striking miners were being routinely beaten up by the police, their picketing disrupted by road blocks, their liberty eroded by mass bail conditions. The Campaign for Nuclear Disarmament was having its marches banned and its protests inhibited by ‘no-go’ areas arbitrarily erected by the police around American bases into which it had been decided to move a new generation of nuclear weapons. Some of my students were even beaten up themselves, on a march against education cuts in London – much to their surprise given what I was teaching them.

Far from confronting any of this from the perspective of principle, the courts were happy to act as a benign legitimating force, their various rulings invariably serving to throw the necessary constitutional camouflage over successive exercises of raw state violence. Eventually the judges overreached themselves even by the standards of the day: their absurd determination to prevent publication of a book (Spycatcher, by Peter Wright) containing serious allegations of criminality against the security services fell apart thanks partly to being published in the US under the protection of the first amendment but mainly to the determination of a European Court of Human Rights to take freedom of expression more seriously than had the supposed guardians of liberty on the Strand. (More on this court later, of course.) The determined commitment of a succession of senior judges to keep Irish prisoners in jail for serious terrorist offences long after it was obvious to all that the men (and in some cases children) involved had been victims of serious miscarriages of justice eventually brought the reckless reactionary partisanship of the senior judiciary to center stage where it could finally be seen and understood by all: the true perspective of the Dennings, the Diplocks, the Lanes, the Bridges, the Donaldsons was eventually exposed for all to see. By the early nineties, the Dicey fantasy I had found on arrival in England was in ruins, believed by almost no one, exposed as a construct founded on deceit.

It is invariably easier to expose the iniquities of the past than it is to address the problems of today. The judiciary has remade itself in a way that has been undoubtedly successful; they are certainly not as they were in the 1980s: aloof, national service men, bound by the Kilmuir rules to an extra-judicial omerta that removed them from all public discourse. The first generation of judges after the catastrophes of the late 1980s responsible for this make-over took to human rights as their penance for past sins and when they got the Human Rights Act (for which many of them had quietly campaigned) they went about interpreting it in a way that has been beneficial. But these men (and a very few women) are now largely going or gone, being replaced by a newer generation of senior figures – even more male than in the immediate past – whose pride in what they do seems untainted by any awareness of past wrong. And in their excitement at their success, not only past wrongs are being forgotten but truths are being constructed in a way that bears striking resemblance to that past. This revival of fantasy is now reacting with the current political atmosphere in a way that threatens to produce a poisonous cocktail that could destroy modern England. I do not believe I exaggerate.

So who are these judges who are at a political front-line many of them probably don’t know exists? We can learn far more than we used to of how they see the world. There are many speeches and public lectures: the Kilmuir rules are long forgotten. The habits of certainty and decisiveness so essential to adjudication are not easily laid aside at the lectern when judges approach it. Perspectives are laid out not as tentative scholarly arguments so much as authoritative findings of fact.   As President of the Supreme Court, Lord Neuberger is understandably one of the more prolific speech-makers. His talk at the Supreme Court of Victoria in Melbourne on 8 August this year introduces us to our first contemporary fantasy: the myth of Whiggish inexorability.   We learn from Lord Neuberger that ‘[t]he history of Human Rights and the United Kingdom in the last 100 years can be divided into several periods’: the ‘dark ages pre 1951 when Europe became ‘sharply aware of the need for [a] strong, clear and codified set of human rights’ when we in the UK did not; the ‘middle ages’ between 1951 and 1966 (when individuals were first allowed to take the UK to the European Court of Human Rights); the ‘years of transition’ between 1966 and implementation of the Human Rights Act 2000 when ‘human rights started to leak into the judicial cerebellum’ and – inevitably – ‘the age of enlightenment’ of today:

There is nothing here about the European choice directly after the war being governed by politics and the fear of the Left that has been so convincingly demonstrated in recent scholarship: the work of Marco Duranti in particular. There is no nod towards the decay of the judges’ standing in the 1980s in the UK that precipitated the move to rights – on Neuberger’s account human rights just sort of leaked into judicial grey matter. And like all such triumphalist accounts of the past, the present is treated as a destination (we are in the ‘still early days’ in our ‘age of enlightenment’), rather than just a brief moment on a journey to somewhere else.

Lord Neuberger is also an exemplar of our second fantasy, that of the civil libertarian common law. The 1980s (and indeed all earlier decades) have been forgotten: ‘there is no doubt that the common law was in many ways the origin and promoter of individual rights’ its only problem being (and the reason for the turn to rights) that ‘it developed such rights in a somewhat haphazard and leisurely way.’ Well that is one way to describe it – the partisanship of the common law for property and contract rights over gender and racial equality; an hostility to trade unions and the Labour party so severe that neither could have survived without legislation directly overturning judicial malevolence; the common law’s service as a base for the serial abuses of liberty with which I began this lecture. In his recent, beautifully written Hamlyn lectures, the celebrated Court of Appeal judge Lord Justice John Laws (The Common Law Constitution ) sings a hymn of praise to the old common law, arguing that it is the unifying principle of the constitution and that ‘its distinctive method has endowed the British State with profoundly beneficial effects.’ The recently retired Lord Chief Justice Lord Igor Judge took a not dissimilar line in a recent lecture at University College London where he defended the courts from executive interference against a background of unquestioned acceptance of the fact of the ‘independence of judicial decision making’ as ‘an integral structure of the constitution’.

Now it is only one step from this position to say that actually the common law is so wonderful that it ought to have superiority over Parliament itself, a position once held by the judges in eras gone by of course, but which one might have thought had been laid to rest by democratic revolution. In fact that is not the case. At least some of the judges have allowed the enthusiasm of certain academic scholars for such a possibility to lead them to what Lord Neuberger in his Melbourne speech called ‘the interesting point’ of whether the courts can in fact overturn Parliament itself. A mini-spate of cases in the Supreme Court have allowed the idea to grow without the unanimous disavowal that would surely have been its fate only a little while ago. On any current account the obstacles against such a judicial overriding of parliament would need to be very high: some draconian flouting of the rule of law or what Lord Neuberger called (and even then only possibly) ‘exceptional circumstances’. Perhaps these are what Lord Carswell in Jackson v Attorney General [2005] UKHL 56 referred to (albeit in the context of a law passed under the Parliament Act) as legislative acts amounting to ‘a fundamental disturbance of the building blocks of the constitution’ (at para 178).

The Human Rights Act currently controls judicial capacity here by its well-known reaffirmation of the principle of Parliamentary sovereignty in sections 3(2), 4(6) and 6(2) – well-known that is to everybody except senior members of the current Government who seem to think that the Act empowers the courts to strike down primary legislation – this fantasy of judicial supremacism in human rights law is a delusion seemingly restricted to the upper reaches of the Conservative party, guided by advisers no doubt to invent a problem in order better to able to curry favour with the electorate by dealing robustly with it. The prime minister has had many opportunities over the past few years to demonstrate how important it is to introduce law into the study of Oxford’s PPE degree – the lack of awareness of the contempt of court demonstrated by his intervention in the trial of the Saatchi PAs and the recent, forthright denial that EU legal obligations apply to British money come to mind. But the nadir was surely his apparent (contrived? genuine?) belief that in implementing a declaration of incompatibility issued in respect of the sex abuse register (so as to afford a modicum of due process to those whose lives had been hugely adversely affected by being on it) he was being forced by the courts to act. The whole point of the Human Rights Act – as my colleague professorial research fellow Francesca Klug has pointed out on occasions too numerous to count – is that declarations of incompatibility do not have to be followed. Lady Hale – who was one of the judges in the case - put it with characteristically understated precision in commenting on this incident: ‘Curiously, when introducing the order in Parliament, the Prime Minister was highly critical of our decision, but made no mention of the fact that the Government could have chosen to do nothing about it’

Repeal of the Human Rights Act – a policy to which the Conservative party is now committed – might well produce exactly that judicial supremacism about which the prime minister complains. Most really strong attacks on the rule of law and/or ‘the building blocks’ of the constitution would inevitably also entail a direct undermining of at least one and possible more Convention rights – the wholesale abolition of legal aid for example would breach the implied right of access to the courts in Article 6, under the Golder and Airey principle. The expulsion of asylum-seekers and others to face torture abroad would engage article 3 and so on. As things stand the judges could surely do nothing about such attacks however fundamental they believed them to be because of the explicit protection afforded parliament when it comes to legislation violating human rights – sections 3, 4 and 6 again. But take that protection away, and the common law solicitude for human rights that would replace it would not necessarily be so beholden to parliament. The primary laws themselves might become vulnerable. This would certainly be very odd: action to end something that could never happen would only serve to bring it about. The fiction of judicial supremacy would be turned into fact by efforts made to deal with it. But abolishing something that isn’t there creates it: in the social as well as earth sciences two negatives do indeed make a positive. Maybe the Tories genuinely don’t care about this – in modern politics the spin is the thing: fantasy rules.

It might seem a little odd to be talking about the British judges in this way, since they have not been at all in the firing line in recent years. The executive and the popular press appear to have a finite capacity for populist indignation against courts and since the decision in the prisoner-voting case of Hirst v United Kingdom in 2005 ((2006) 42 EHRR 41), most of this has been heading out of town, away from the Royal Courts of Justice and towards Strasbourg. True there have been past periods of noisy British scepticism towards the European Court of Human Rights (one thinks in particular of Ireland v UK (1978) 2 EHRR 25 and the Gibraltar decision of McCann v United Kingdom (1996) 21 EHRR 97 holding the UK responsible for the killing of an IRA active service unit) but nothing has been as sustained or as vehement as the head of steam that has been built up over this – it has to be said – relatively minor question of prisoner voting. True the litigant was not ideal from a human rights point of view: an axe-wielding killer celebrating his win with champagne as he pours Youtube abuse on the authorities was something of a low point even in the world of unsavory human rights defendants: And it was unlucky of Strasbourg that they were left holding this particular package when the music stopped – the local courts having deftly avoided trouble by refusing to find any human rights violation when the matter came before them. How the issue has escalated as it has must be a matter for sociologists and political scientists. One of the more remarkable features of the strange times we live in is that the case has produced a myth to which it is own refutation. The myth is that of Strasbourg supremacism: what the European Court of Human Rights says goes. Or as Lord Rodger of Earlsferry famously put it in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269 at para 98, ‘Argentoratum locutum: iudicium finitum – Strasbourg has spoken, the case is closed’. But if this were true, prisoners would now be voting. Not only are they not voting; the Supreme Court has itself, in R (Chester) v Secretary of State for Justice; McGeoch (AP) v Lord President of Council [2013] UKSC 67, specifically refused even to issue a declaration of incompatibility to put pressure on the government that they should allow such votes. The obligations under the Council of Europe’s Convention on Human Rights are international not domestic: our legal system does not require their implementation, immediately or indeed ever (see article 46). True adherence to international law is an important matter, one that has many repercussions – the UK might find it harder to tell other countries what to do with regard to human rights; it might find itself in trouble at the Council of Europe; the UK judge at Strasbourg may end up lunching alone; and so on. Importantly for present purposes none of these effects is legal, or more precisely legal in the domestic sense.

The extraordinary way in which our public culture has been mustered to savage the Strasbourg court is one of the dismal wonders of our politically constricted age. That court has rescued the English common law from itself on far more occasions that it has made itself an unnecessary nuisance: the maltreatment of gays purely on account of their sexual orientation (Dudgeon v United Kingdom (1981) 4 EHRR 149); corporal punishment in schools (Campbell and Cosans v United Kingdom [1982] ECHR 1); the inhuman and degrading treatment of internees (Ireland v United Kingdom (1978) 2 EHRR 25); the deliberate shooting of suspected terrorists (McCann v United Kingdom (1996) 21 EHRR 97); draconian contempt laws that prevented campaigning newspapers from exposing wrong (Sunday Times v United Kingdom (1979) 2 EHRR 245); long periods of detention without trial Brogan v United Kingdom (1988) 11 EHRR 117); cruel invasions of privacy (Kaye v Andrew Robertson and Sports Newspapers Ltd [1991] FSR 62) – all unnoticed by the common law’s supposed celebration of individual rights, not leaking into ‘the judicial cerebellum’ so much as being rammed into it by Continental judges in the teeth of domestic opposition. Often this opposition has been led by politicians of course: the annoyance at having executive discretion constrained combines with awareness that the Strasbourg court will not answer back to produce a temptation to play to the gallery that is rarely resisted. But at least politicians have the excuse that they need votes and therefore have to please the Mail, potential UKIP voters and others who for various reasons are disinclined to look honestly at the facts. What excuse do British judges and former judges have for their recent attacks on the Court?

There is a long if not venerable tradition here of British mistrust of what Strasbourg does. The distinguished lawyer F A Mann once gave revealing expression to it in a note in the Law Quarterly Review inveighing against the majority judges in a leading Strasbourg case not on the basis of what they said but on account of the puny countries from which they came: (1979) 95 Law Quarterly Review 348. In the politer 1990s as the chastened judges rebuilt their reputation, such modest recoiling from Strasbourg’s incoherence as there was produced only occasionally expressed judicial puzzlement and a range of tentatively-articulated extra-judicial speeches in favour of incorporating the Convention into UK law and so giving British judges the first say over what it meant, a good example being the late Lord Bingham’s, ‘The European Convention on Human Rights: time to incorporate’ (1993) 109 Law Quarterly Review 390.

Now though we seemed to have entered a new era of vulgarity. Perhaps it was Lord Hoffmann who started this with his famous speech in 2009 to the judicial studies board on the ‘Universality of Human Rights in which he paraded a startlingly ridiculous set of remarks from a dissenting judge on the Strasbourg bench as though they were typical of agreed interventions by a unanimous grand chamber. Lord Judge’s recent interview in Counsel magazine was sufficiently forthright to receive the doubtful accolade of the following Daily Mail headline ‘HUMAN RIGHTS COURT “IS A THREAT TO DEMOCRACY”: EX-LORD CHIEF JUSTICE BLASTS UNELECTED STRASBOURG JUDGES’ There is another fantasy here, that of the neutral judge, the convention that he or she stands above the eddies and flows of the political. No doubt Lord Judge believes that he is making an apolitical point when he writes of the supremacy of parliament and of the need for judges not to get involved in political questions. But saying as much these days is in itself a political intervention. Lord Sumption manoeuvred himself into exactly the same position in his F A Mann lecture lecture on judicial and political decision-making in 2011, shortly before he took up his position as a supreme court judge. His excoriation of the tendency of the Strasbourg court to develop its jurisprudence across all 47 member states in a way which conflicted ‘with some very basic principles on which human societies are organised’ grew out of his belief that the Strasbourg jurisprudence had got out of control, with its ‘large number of derivative sub-principles and rules, addressing the internal arrangements of contracting states in great detail’. But calling for the court to pull back is itself a political intervention. The Conservatives echo this critique when they call for the Strasbourg Court to disown its jurisprudence on the evolving meaning to be accorded rights in the Convention. In doing this they are mimicking the American emphasis on original intent dreamed up by Reagan’s attorney general Ed Meese and supported by the anti-federalists and Christian right as a way of providing scholarly cover for the forced retreat of the US federal government on the one hand and the overturning of the celebrated abortion decision Roe v Wade on the other (In seeming through their arguments to eschew the world of politics both Lord Judge and Lord Sumption are in fact entering that world, their conservative position disguised as neutral by the judicial garb one has just taken off and the other was just about to out on.

A subset of the fantasy of Strasbourg supremacism, encouraged by Lord Rodgers’s ill-advised plunge into Latin, is that Strasbourg’s cases are required to be followed by the British courts.   As even first year law students know, this is simply not the case. The Human Rights Act could not have been clearer in section 2 when it required of the judicial authorities interpreting the Act that they take into account such jurisprudence – no further requirement to (in the English common law sense) ‘follow’ such decisions appears in the Act. Now it is perfectly true that the courts here themselves have tended to support Strasbourg decisions (Lord Bingham’s ‘mirror principle’ in R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323) on the sensible basis that it is wise to keep in tune with a body to which your own litigants (or at least the non-governmental ones) can appeal. Never invariable, that mirror principle has loosened up of late, with the courts treating the Strasbourg menu as if not quite a la carte then at least one from which there is a decent choice, including if needs must a house special grown entirely from British produce: R v Horncastle [2009] UKSC 14, [2010] 2 WLR 47. Strasbourg has on the whole gone along with this, conceding some positions to help keep the peace (as in Al-Khawaja and Tahery v United Kingdom (2012) 54 EHRR 23 (GC)) revisiting its case-law in light of guidance from their lordships, (Animal Defenders v United Kingdom (2013) 57 EHRR 21 (GC)) and even recanting when it has been caught out in foolishness (Z v United Kingdom (2002) 34 EHRR 97). This is what all informed observers call ‘dialogue’ – it is not dictatorship. The Conservative Party’s recent peculiar set of proposals, already referred to, for ‘changing Britain’s human rights law’ was full of invective against the Strasbourg court and this led its authors to conclude that the Human Rights Act needed to go (not Strasbourg, oddly). But why the Human Rights Act? The crime is that all this Strasbourg rubbish (‘problematic jurisprudence’) is getting into our law (‘often being applied’) and this has to stop. But then a bit later the paper volunteers that Strasbourg is ‘creating legal precedent for the UK’. So which is it ‘often’ or ‘always’? The paper appears to believe it is both, simultaneously. If section 2 did not already exist it would be produced as the solution to a problem – Strasbourg supremacy – that is simply not there, or at least not there in our domestic human rights law.

I end with the largest fantasy of all, the fantasy that drives all the others on this little island, or accurately a bit of this little island, and which is the only reason I can find for what would otherwise be incomprehensible. Lord Neuberger has it spot on when he told a Cambridge audience in February this year that ‘[t]he loss of the Empire and the loss of world premier league status has inevitably caused problems to the national psyche’ and that it is therefore understandable that ‘a transformation from a global pre-eminent status to just one of many EU or Council members requires an almost super-human attitudinal adjustment’ It is not one that some have been able to make, especially those, it seems, whose entire education has never required departure from the quads, cloisters and colleges of past glory or any kind of mustering in with that England known to the other ninety per cent. The Conservative part of the government increasingly gives the impression that the Act of Union with Scotland was the beginning of an heroic English age of imperialism to which we can now return, the people cheering from the sidelines as they did when Disraeli paraded Victoria as Empress of India.   Down that route is a provincial backwater peopled by well-educated fools, shouting loudly. No judge, past or present, should be encouraging this fantasy of English exceptionalism, especially now as it gathers such populist steam.

 

Conor Gearty is Director of the Institute of Public Affairs and Professor of Human Rights Law LSE. This is the text of the 36th Corbishley Lecture, held at LSE.

 

Suggested citation: C. Gearty ‘On Fantasy Island: British politics, English judges and the European Convention on Human Rights’ UK Const. L. Blog (13th November 2014) (available at http://ukconstitutionallaw.org)

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George Letsas: Lord Sumption’s Attack on Strasbourg: More Than Political Rhetoric?

a_letsasIn a lecture delivered on the 20th of November, Lord Sumption, the United Kingdom Supreme Court judge, mounted a direct attack on the legitimacy of the European Court of Human Rights. The Strasbourg Court, he claimed, makes new law by continuously expanding the scope of the rights protected under the European Convention on Human Rights (ECHR). In doing so, Strasbourg treads on matters of policy that are not for unelected judges, let alone international judges, to decide.

Any law student who has studied constitutional law or jurisprudence will immediately recognize the age-old questions that Lord Sumption’s critique raises. Do judges make or discover law? Are drafters’ intentions relevant in interpreting legal texts? Is judicial review undemocratic? Can the meaning of fundamental rights change over time? Such questions concern fundamental political issues in any liberal democracy, issues about which reasonable people disagree. They are issues that have received extensive philosophical treatment by constitutional scholars around the world, particularly in countries, like the USA, in which judges have long exercised the power to review the compatibility of legislation with abstract constitutional rights. But this power of review is quite new for the judges in the UK most of whom have been schooled in the archaic doctrine of Parliamentary sovereignty. The power was formally introduced with the Human Rights Act 1998, which incorporated the ECHR into domestic law. Within a decade, old questions about the nature of fundamental rights and the role of judicial review came to the forefront of British law and politics.

So Lord Sumption’s questions are not new. But are there any new arguments? Lord Sumption rose to prominence by being appointed to the Supreme Court directly from the practicing bar in 2012. He was educated at Eton College and his first degree, from Oxford University, was not in law but in history. In his speech, he makes three arguments in support of his claim that Strasbourg acts illegitimately. The first is that the Strasbourg Court, by interpreting the ECHR as a living-instrument, recognizes rights which states did not intend to grant, contrary to legally binding norms of interpretation found, amongst other sources, in the Vienna Convention on the Law of Treaties. The second is that the value of certainty requires strict construction of legal texts. The third is that the Strasbourg Court decides matters of policy that should be decided by democratically elected branches of government. Now, is there any merit in these arguments?

The view that judges should not overstep the boundaries of their jurisdiction and decide matters of policy is common ground in any debate about judicial review. Neither the Strasbourg Court nor its supporters believe that its approach to interpretation should exceed the bounds of law and lead to an abuse of judicial power. They are not cynics who knowingly flout the law as part of some anti-democratic international conspiracy. Rather, the Court holds – honestly and reasonably- a particular conception of what the EHCR rights, qua legal rights, are. It is a conception of human rights, according to which the scope of ECHR provisions may evolve over time in order to account for new or previously neglected threats to individual freedom (the ‘living instrument’ approach). It is also a conception of rights with which Lord Sumption happens to disagree. But precisely because both the Strasbourg Court and its critics agree that judges must not decide matters of policy, the allegation of Lord Sumption that Strasbourg’s ‘living instrument’ approach exceeds the bounds of law needs a further argument. Without an argument, it is question-begging; it assumes what needs to be shown. So what is the argument for why the 800 million people who live in Europe today have no legal rights against new or previously neglected threats to their human rights?

Lord Sumption appeals to drafters’ intentions, the text of the Convention and the Vienna Convention on the Law of Treaties. But his opponents can equally appeal to all these in order to support their competing conception of the ECHR rights. Didn’t the drafters of the ECHR have the abstract intention to protect whatever human rights people indeed have, as opposed to the human rights that they, in 1950, believed exist? If the aim of human rights treaties is to protect what human rights people indeed have, based on the best available argument on the day, then isn’t Strasbourg’s ‘living-instrument’ approach compatible with the rules of interpretation of the Vienna Convention on the Law of Treaties which prioritizes the object and purpose of treaties?

And then there is the text. Lord Sumption finds that the expansion of the scope of the ECHR to illegitimate children, criminal sentencing, immigration, extradition, homosexuality, abortion, assisted-suicide was “not warranted by the express language of the Convention”. Now, I read again the text of article 8 ECHR and it says ‘Everyone has the right to respect for his private and family life”. It does not say that everyone has a right to respect for his private and family life except homosexuals, illegitimate children, criminals, immigrants, pregnant women or terminally ill patients. One can return the textualist argument to Lord Sumption: doesn’t ‘everyone’ mean everyone? No amount of strict textual construction, however ingenious, could block considering the new human rights claims of these vulnerable groups. To be sure, there may be other reasons why such claims should be thrown out. But solely appealing to the abstract language of a bill of rights, or to the specific (as opposed to the abstract) intentions of drafters, never made a good legal argument.

Lord Sumption does offer one argument in support of his claims that his opponents must reject. He appeals to the value of certainty, which, he rightly notes, is very important in law. His opponents cannot rely on it because the idea that the ECHR is a living instrument often comes with a degree of surprise: the Strasbourg Court may recognize as a human rights issue something that some or most states never expected. But is the legal value of certainty paramount? We think that it is paramount only in some areas of law, such as criminal law, where it is unfair to defeat the expectations of individuals about when the state will use its coercive force: nullum crimen et nulla poene sine lege certa. But no individual’s life plans are upset when the Strasbourg Court unexpectedly upholds new human rights claims, such as trafficking or prisoners’ rights. The only one who might be surprised and adversely affected by such holdings is the state which is held responsible for the human rights violation. And the value of certainty is meant to protect individuals from arbitrary interference by the state, not to protect the state from being scrutinized about its intrusion on individual rights. So the value of certainty, important as it may be, cannot carry the weight of a conclusive attack on the living instrument approach.

The above objections to Lord Sumption’s claims are not new. I, and many others, have made them in scholarly publications with a view to sharpen and improve the quality of the debate about the best understanding of the role of human rights and judicial review in a liberal democracy. Judges should of course take part in this debate. But they are required to do so by developing normative theories of the legal values in question (i.e. democracy and human rights) and by engaging, in good-faith with well-known legal and philosophical arguments made on the other side. No one is exempt from this requirement, just because she is a judge or just because she thinks that the debate is ‘political’. ‘Political’ does not mean devoid of argument.

We all hold the values of democracy and human rights dear and we all agree that judges, in promoting these values, must not usurp the functions of parliament. Lord Sumption’s attack on the Strasbourg Court was based on question-begging arguments that failed to address the substance of the issues involved. It was a piece of empty political rhetoric, which does not help to promote the kind of dialogue about democracy and human rights that a mature liberal democracy, like the United Kingdom, needs.

George Letsas is the Co-Director of the UCL Institute for Human Rights and a Reader in the Philosophy of Law and Human Rights at University College London.

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Ruvi Ziegler: The missing right to vote: The UK Supreme Court’s judgment in Chester and McGeoch

Magd tower cropped[2]On 16 October 2013, a seven-judge panel of the UK Supreme Court (UKSC) unanimously rejected two challenges (R (Chester) v Secretary of State for Justice  and McGeoch v The Lord President of the Council & Anor  and the judgment summary) brought by prisoners serving terms of life imprisonment against their disenfranchisement in UK national elections pursuant to section 3(1) of the Representation of the People Act 1983 (RPA) and in EU Parliamentary elections and UK local elections pursuant to section 8(2) of the European Parliamentary Elections Act 2002.

The UKSC rejected the Attorney General’s submission that the principles proclaimed by the Grand Chamber of the European Court of Human Rights (ECtHR) in its 2005 Hirst (No 2) and Scoppola (no. 3) judgments should not be followed. However, the UKSC declined to issue a declaration of incompatibility under section 4 of the Human Rights Act (HRA); such a declaration has been issued in 2007 by the Scottish registration appeal court in Smith v Scott.  Furthermore, the court concluded that EU law does not enunciate an individual right to vote paralleling the stipulation in Article 3 of Protocol I (AP1-3) of the European Convention on Human Rights (ECHR), and declined to make a referral to the European Court of Justice. Rather ironically, the present legal situation in the UK is that pursuant to section 1 of the Representation of the People Act 1981, a prisoner who is serving less than 12 months is eligible to stand in elections as an MP, but not to vote for herself in such elections.

Prime Minister David Cameron, having previously opined that the notion of prisoner voting makes him ‘physically ill’, tweeted that the ruling is a ‘great victory for common sense’. His general observation, albeit for rather different reasons, was shared by Adam Wagner. In the critique that follows, I argue that a more suitable description for this judgment may be judicial realpolitik in a politically toxic zeitgeist with potentially harmful long-term implications for the legal protection of the right to vote in the UK.

Question-framing and point(s) of departure

The main judgment, written by Lord Mance, considers whether the UKSC ought to depart from the ECtHR judgments’ reasoning. The ECtHR’s consistent jurisprudence in cases involving voting eligibility considers at the outset the right to vote in a modern democracy, the extent to which it is infringed in the relevant circumstances, and the justification(s) for such infringement(s). By contrast, Lord Mance’s analysis focuses on whether prisoner disenfranchisement is a fundamental principle of UK law: it concludes that ‘it is difficult to see prisoner disenfranchisement as fundamental to a stable democracy and legal system such as the United Kingdom enjoys’; consequently, following the Horncastle ratio, Lord Mance holds that the Strasbourg jurisprudence should be followed. Scant reference is made to the justifications for disenfranchisement (compare Lady Hale [93]); the rationales for protecting the right to vote are hardly detectable (compare Lord Clarke [107]).    

The key to understanding the rather casual approach to the right to vote may lie in Lord Sumption’s account of the history of suffrage [126]. He describes prisoner disenfranchisement as ‘mainly the incidental consequence of other rules of law’, and dismisses the claim that it was part of a ‘civil death’ philosophy. By describing the happenstance in which prisoner disenfranchisement came about, Lord Sumption affirms the perception that disenfranchisement has not come about following principled discussion in which the justifications for disenfranchisement were fully threshed out. Lord Sumption submits that [128] ‘imprisonment is more than a mere deprivation of liberty. It is a temporary reclusion of the prisoner from society, which carries with it the loss of the right to participate in society’s public, collective processes’. This argument offers an analytically distinct basis for disenfranchisement than the bases proposed by the UK in its submissions in Hirst (no. 2). Clear legislative aims are important not just because they convey concern and respect for individual members of society whose rights are infringed: they are crucial also because, in their absence, line-drawing turns conspicuously arbitrary.

Consequently, it is unclear from the main judgment whether, absent clear Strasbourg jurisprudence, the UKSC would have held the current blanket ban to be incompatible with AP1-3. It should be recalled that John Hirst was denied permission to appeal against the High Court judgment, leading to his successful ECtHR litigation. In his separate opinion, Lord Sumption declares that he would not have found the RPA to be incompatible with AP1-3. Conversely, Lord Clarke would have likely adopted Strasbourg-like reasoning: in [110], he notes that ‘there seems to me to be much to be said for the Strasbourg Court’s approach to a blanket ban, at any rate absent detailed consideration of the pros and cons of such a ban’. Lady Hale would have possibly joined him, expressing in [98] ‘some sympathy…for the view of the Strasbourg court that our present law is arbitrary and indiscriminate’, and noting in [96] that there is ‘an element of arbitrariness in selecting the custody threshold as a unique indicator of offending so serious as to justify exclusion from the democratic process’.

More worrying still is the conceptual indeterminacy surrounding the basis for an individual right to vote and restrictions on its exercise that may follow were the UK to withdraw from the ECHR (or indeed repeal the HRA). Lord Mance posits that [59] ‘under EU law Eligibility to vote in Member States is basically a matter for national legislatures’. Now, the fundamental importance of the right to vote in the UK Constitutional order should be recognised notwithstanding its membership of the EU (or the ECHR). It is at least arguable that EU treaties assume that member states recognise their own citizens’ right to vote, and so the principles of non-discrimination are hardly meant to serve levelling down approaches.

Institutional justiciability and public opinion

The justices clearly diverge as to whether the judiciary should consider challenges to legislation determining voting eligibility. In the main judgment, Lord Mance cites (approvingly) the Attorney General’s submission that the court should respect [32] ‘the choice made by the institution competent to make such choices in a democracy’. Lord Sumption posits that this is a [137] ‘classic matter for political and legislative judgment’. In contradistinction, Lady Hale notes that [88] ‘in any modern democracy, the views of the public and Parliamentarians cannot be the end of the story’ and that ‘if there is a Constitution, or a Bill of Rights, or even a Human Rights Act, which guarantees equal treatment in the enjoyment of its fundamental rights, including the right to vote, it would be the task of the courts, as guardians of those rights, to declare the unjustified exclusion unconstitutional’ (my emphasis).

Nonetheless, Lady Hale begins her opinion [86] by citing YouGov polls disapproving of prisoner voting, and suggests that ‘[o]f course the exclusion of prisoners from voting is of a different order from the exclusion of women, African-Caribbeans or homosexuals’. Now, it is not usual practice for courts in this country to cite opinion polls, not least in cases concerning fundamental rights: one can assume that the outcomes of some Article 8 cases, for instance, are not always particularly popular. The choice to cite opinion polls is thus rather surprising. Moreover, dismissing any comparison between other electoral exclusions and the disenfranchisement of prisoners seems too quick: for instance, the Prison Reform Trust in its submission to the joint Select Committee notes that an estimated 11% of the prison population is black even though blacks make up only approximately 2% of the UK population; it is at least arguable that, even if the ground for exclusion is not invidious, its consequence is a perpetuation of the marginalisation of black and minority groups from the political process (across the pond, the political ramifications in respect of African-American are far greater, and even the invidiousness of disenfranchising legislation can hardly be dismissed).

Proper acknowledgment of the (prima facie) right to vote of serving prisoners  

Lord Sumption contends [114] that ‘[f]rom a prisoner’s point of view the loss of the right to vote is likely to be a very minor deprivation by comparison with the loss of liberty’ and [115] ‘decline[s] to regard it as any more significant than the fact that it may coincide with a special anniversary, a long anticipated holiday or the only period of fine weather all summer.’ However, notwithstanding the contentious substance of this claim, consistent Strasbourg and UK jurisprudence (explored in the case for letting prisoners vote) has held that the legal question is not whether the infringement or denial of a prisoner’s right to e.g. freedom of expression is a greater deprivation than denial of liberty but, rather, whether it is an inevitable consequence of imprisonment: if it is not, then one needs to consider the justifications for such infringement on its merits, not in comparison with other infringements.

Lady Hale posits that [101] ‘[t]he Electoral Registration Officer for Wakefield refused his [Mr Chester’s] application for inclusion on the electoral roll. But in my view that could not have been incompatible with his Convention rights, because (at least following Scoppola v Italy) the Convention does not give him the right to vote.’ However, consistent Strasbourg jurisprudence, which Lady Hale otherwise accepts, rightly notes that qua adult citizens, prisoners have a prima facie right to vote; the question to be determined is whether legislative arrangements justifiably infringe or unjustifiably violate that right. Hence, the Convention (AP1-3, more accurately) does give Mr Chester the right to vote, though (following Scoppola (no. 3)) a contracting state may legislate to disenfranchise prisoners serving life sentences.

Declaration of incompatibility in abstracto in light of Scoppola (no. 3)

The question whether declarations of incompatibility should be issued in abstracto has wider implications beyond the present case. Over at Head of Legal, Lady Hale’s ‘attack on the sort of abstract rulings these appellants, both of whom are serving life for murder, were asking for’ was described as ‘trenchant’, although she notes that [102] ‘[t]here may be occasions when that [a declaration of incompatibility in abstracto] would be appropriate…[though] the court should be extremely slow’ to do so.

Lord Sumption critiques the outcome of the Scoppola (no. 3) judgment, noting that [135] ‘wherever the threshold for imprisonment is placed, it seems to have been their [the ECtHR] view that there must always be some offences which are serious enough to warrant imprisonment but not serious enough to warrant disenfranchisement. Yet the basis of this view is nowhere articulated.’ With respect, this observation is accurate. Elsewhere, I have lamented Scoppola (no. 3)’s step backwards from the First Section Chamber’s reasoning in Frodl which in turn logically followed from Hirst (no. 2). As Judge Thór Björgvinsson’s dissent in Scoppola (no. 3) (cited by Lord Mance in [24]) stipulated, the judgment ‘offer[ed] a very narrow interpretation of the Hirst judgment’ which stripped it of ‘all its bite’. In particular, Björgvinsson argued, the Grand Chamber had overlooked significant elements of the reasoning in Hirst (no. 2), notably the absence of any direct link between the facts of the individual case and the ban on voting, the bluntness of the Italian legislation, and the absence of evidence that either the legislature or the courts had weighed the proportionality of the ban.

Declining to issue a declaration of incompatibility, Lord Mance notes that [40] ‘it can…now be said with considerable confidence that the ban on Chester’s voting is one which the United Kingdom Parliament can, consistently with the Convention right, and would maintain, whatever amendments it may be obliged to make or may make to allow any prisoners detained for different reasons or periods to vote.’ Indeed, legislation disenfranchising all life prisoners without individual consideration appears to be compatible with Scoppola (no. 3), whereas such an unequivocal conclusion could not have been drawn after Hirst (no. 2).  The chickens of Scoppola (no. 3) have, as it were, come home to roost in Chester and McGeoch. It is open to question whether a case concerning prisoners serving e.g. ten months in prison would have yielded a declaration of incompatibility.

The (ECHR) Rule of Law

On 22 November 2012, after lengthy feet-dragging (discussed on this blog), and on the very last day of the extension granted to the UK to comply with the Hirst (no. 2) judgment, the Voting Eligibility (Prisoners) Bill was introduced. The bill sets out three legislative options: (1) ban from voting those sentenced to four years’ imprisonment or more; (2) ban from voting those sentenced to six months’ imprisonment or more; (3) maintain the status quo. The bill is undergoing pre-legislative scrutiny by a joint select committee which is expected to report to both Houses of Parliament by 18 December 2013.

Now, it is evident that option (3) is incompatible with the Hirst (no. 2) judgment; as Lord Sumption [118] notes, the explanatory memorandum acknowledges that government is unable to issue a HRA section 19 statement of compatibility. Nevertheless, neither the main judgment nor any of the separate opinions comment on the implications of parliament voting to retain the current ban whilst the UK remains bound by its international obligations. The main judgment merely notes that ‘[w]ithin the domestic legal context, it is now therefore for Parliament as the democratically elected legislature to complete its consideration of the position’. It seems that, in matters concerning supra-national institutions and obligations, rule of law considerations carry less weight.

Article 46 of the ECHR unequivocally stipulates that the UK must abide by a final decision of the ECtHR in any case to which it is a party. Indeed, the Brighton Declaration pronounced [27] that ‘[t]he Committee of Ministers [of the Council of Europe] should be able to take effective measures in respect of a State Party that fails to comply with its obligations under Article 46 of the Convention.’ The Committee of Ministers in its September 2013 meeting considered the execution of the Hirst (no. 2), underlining the urgency of bringing the legislative process to a conclusion, and declaring its intention to resume examination of the progress made to these ends in December 2013. Meanwhile, 2,354 UK prisoners’ cases (App. nos. 47784/09 et al Firth and 2,353 Others v. UK) are pending before the ECtHR, which adjourned their consideration until 30 September 2013. If, as Lord Sumption posits [118], ‘the only reasonable conclusion that can be drawn from this [parliamentary] history is that there is no democratic mandate for the enfranchisement of convicted prisoners’, a clash with the Committee of Ministers (and the ECtHR) may be inevitable.

Concluding thoughts

It appears that the legal basis for an individual right to vote in the UK and the (curtailed) protection for voting rights of incarcerated adult citizens lies (only) in the ECHR and its incorporation into domestic law, and is extended (only) insofar as the ECHR does (arguably excluding consideration of eligibility for participation in referenda e.g. the upcoming Scottish independence referendum on 18 September 2014). The main judgment made a ‘negative’ finding, namely that prisoner disenfranchisement as such is not fundamental to the UK, being a stable democracy, rather than enunciated a UK right to vote. Indeed, it is possible to read this judgment as suggesting that, were it not for the ECHR (and the HRA), absent a right to vote, voting eligibility questions in the UK would (at best) be determined based on general non-discrimination principles. This outcome is regrettable.

Dr. Reuven (Ruvi) Ziegler is a Lecturer in law at the University of Reading.

Suggested citation: R. Ziegler, ‘The missing right to vote: The UK Supreme Court’s judgment in Chester and McGeoch’ UK Const. L. Blog (24th October 2013) (available at http://ukconstitutionallaw.org)

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Anthony Bradley: The Work Of The Administrative Court

There are at least three reasons why constitutional lawyers must endeavour to keep abreast of the work of the Administrative Court and of decisions on appeal from that Court.  Day by day, judges in that Court are required to review the use of executive powers and ensure that established principles of legality are observed by government.  Such review is both salutary for public authorities and provides protection for many individuals against the wrongful use of power.  This constitutional role of the Court was reinforced in 2000 by the extended jurisdiction that it then acquired under the Human Rights Act 1998.  An understanding of the work of the Court is a foundation for discussion of the boundaries that do or should exist between the executive, Parliament and the judiciary.

The recent decision in R (on the application of HA (Nigeria) v Secretary of State for the Home Department [2012] EWHC 979 (Admin) is a stimulating example of this work.  The decision-maker, Singh J, better known to public lawyers as Rabinder Singh QC, has been a Queen’s Bench judge since October 2011.  Aged 48, he is the youngest judge in the High Court.  Before beginning a deservedly successful career as a barrister, he lectured in law in the University of Nottingham, when his many contributions to public law scholarship began.[1]  The case of HA (Nigeria) concerned an overstayer from Nigeria whose conviction and imprisonment for a drug offence caused him to be subject to deportation to Nigeria under the UK Borders Act 2007. After completion of his prison sentence, he was detained in a succession of immigration removal centres, during which time he manifested many forms of strange behaviour.  A psychiatrist’s report recommended that he be transferred to hospital but despite rule 35 of the Detention Centre Rules 2001, it was over five months before the transfer occurred.   In hospital he was diagnosed as having a psychotic illness requiring medication but during his time in hospital the Secretary of State’s guidance concerning suitability of detention for the mentally ill was amended and HA was transferred back to detention.

The judgment makes clear both the complex factual background to the case, setting out in coolly analytical terms the response of Border Agency officials to  distressing personal circumstances, as well as dealing with six issues of principle raised by the case.  Thus Singh J held that the Secretary of State’s decision to authorise HA’s continued detention was flawed as a matter of public law,[2] but that no separate issues arose regarding Article 5 ECHR (right to liberty and security).  The judgment dealt obiter with the inter-relation between the Mental Health Act 1983 and detention under the UK Borders Act 2007.  The most significant holding in the judgment deals with a change in Home Office policy, which had been altered from a statement that “the mentally ill” were “normally considered suitable for detention in only very exceptional circumstances” to the statement that those suffering from mental illness were suitable for detention unless “suffering serious mental illness which cannot be satisfactorily managed within detention”.

Remarkably, the Home Office argued that no change in the policy had occurred, and therefore that no consultation was needed before the text was changed.   Singh J was in no doubt that there had been a change “in at least the stated policy” and commented that “the meaning of a policy is an objective matter”: public law now stressed the importance of adherence (in general) to policy statements since “they serve an important function in maintaining the rule of law, which is of particular importance when fundamental rights such as the right to personal liberty are at stake”.  In a context such as the one before him, “the meaning of a policy is ultimately a question for the courts, not one for the executive”.[3]  Moreover, the Home Office amendment was unlawful for failure to comply with the public sector equality duties that arose under the Race Relations Act 1976 and the Disability Discrimination Act 1995.

I do not suggest that the facts of this case were of exceptional difficulty, and we have come to expect that judgments of comparable quality are often delivered in the Administrative Court.  But I believe that constitutional lawyers should regard such judgments, and the system of justice that makes them possible, as a notable achievement in our contemporary society.

With this reflection in mind, I have read again the F A Mann lecture that Jonathan Sumption QC gave, after being appointed to the Supreme Court from the ranks of the practising Bar but during the unduly long period in which he continued to appear as an advocate.  The lecture was entitled “Judicial and Political Decision-Making: the Uncertain Boundary”.  Stephen Sedley’s response in the London Review of Books [4] is well-known, and there is little that needs to be added to it.

Certainly the lecture raises issues that are of first importance, including the changing political climate in which public law decisions are made.  But one difficulty about the lecture is that, on closer examination, its target is uncertain.  While uttering more than one saving clause that maintains a foothold for the judicial review of executive action, the lecturer in effect aims at a double target:  the judiciary are indicted for crossing the boundary into political decision-making; and the Human Rights Act (and the Convention) are damned for their part in bringing this about.  Sumption’s critique of the Strasbourg jurisprudence (for having developed sub-principles and rules that “go well beyond what is required to vindicate the rights expressly conferred by the Convention”) brings to mind the position taken by Sir Gerald Fitzmaurice in Golder v United Kingdom, where he dissented from the proposition that the right to a hearing in the determination of a prisoner’s civil rights under Article 6 ECHR would be meaningless unless the prisoner is permitted access to legal advice.

As for the generalised attack on judges for interfering in politics, Sumption explains that the law is a barrier to the exercise of power, because of its “formidable bias in favour of private rights and traditional social expectations, and a corps of professional judges to administer it who are not accountable to the electorate for their decisions”. He invokes De Tocqueville for support, for whom the lawyers “secretly oppose their aristocratic instincts to the democratic instincts of the people.”  In interpreting written instruments, “[it] is not easy for a judge to decide what is strange or repellent, except by reference to his own assessment of the policy under review”.  Sumption stresses that a powerful factor in many decisions is “the judge’s views about the merits of the underlying policy”.  When judges are dealing with the alleged abuse of discretionary powers, they are often “dealing with matters (namely the merits of policy decisions) which in a democracy are the proper function of Parliament and of ministers answerable to Parliament and the electorate”.  His optimistic conclusion on the role of Parliament is that “Parliamentary scrutiny is generally perfectly adequate for the purpose of protecting the public interest in the area of policy-making”.  And, reflecting that public law “ought in principle to respect the conventional limitations on judicial action”, he comments that “[the] problem in cases governed by common law principles of judicial review is that they do not do it on a sufficiently principled or consistent basis”.

I doubt whether Lord Sumption’s practice at the bar included many visits to the Administrative Court, or whether he frequently appeared for legally-aided clients.  If the Mann lecture is juxtaposed with the judgment given by Singh J in R (HA (Nigeria)) v Secretary of State for the Home Department, I conclude that there is much to be said for a system of judicial appointments that enables our ablest lawyers to become judges, make progress through the senior courts and (for some of them) proceed into the Supreme Court, but requires that new justices in the Supreme Court should have previously experienced the rigorous discipline of decision-making that is called for by the kinds of case that make up the case-load of that Court.

Anthony Bradley is Emeritus Professor of Constitutional Law, Edinburgh University, and a visiting research fellow at the Institute of European and Comparative Law, University of Oxford.


[1]             See his article, “The Indirect Regulation of Speech: a time and a place for everything?” [1988] Public Law 212.

[2]             Citing in particular R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245.

[3]             Lumba’s case cited in note 3 is of great importance in view of the lead that the Supreme Court gives to judicial review of executive policies that are adopted in non-statutory form.

[4]             Volume 34, no 4 (23 February 2012)


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Stuart Lakin: What Role Should Judges Play in the Constitution Justice Sumption?

In his recent F.A. Mann lecture Jonathan Sumption Q.C., the newly appointed member of the Supreme Court, took up the question of the proper role of judges vis-a-vis the political branches of government in the UK.   Tom Adams has already provided a fine summary and analysis of the lecture in his January post.   I urge readers to follow the link to this post (and to read the lecture itself ) before continuing.

In this short comment, I want to offer some thoughts on Sumption’s central theme, namely that judges should not intervene in matters of politics or policy.     I shall make two general points, one positive and one negative.   In the positive, I shall support Sumption’s call for judges to engage directly with constitutional theory in determining which branches of government should decide which types of questions (for a more general argument about the importance of theory for public law, see my earlier post.)  In the negative, I shall support Tom Adams’s conclusion that Sumption’s own constitutional theory is rather unbalanced.   While Sumption makes many cogent arguments about the distinctive virtues of politics and governmental policy-making, he needs to say far more about the precise role of judges in the constitution.    This task, in turn, requires a far more detailed and nuanced account of the nature and importance of law, the rule of law and individual rights.

Before I move into my arguments, it is worth sounding a few notes of caution.  A public lecture of about 9,000 words (or an hour) in length, given just a few months before taking up judicial office (for the first time) in the highest court in the land, with lawyers, journalists and others hanging on your every word, is probably not the ideal occasion to mark someone’s score sheet.    Sumption is an unusually bright lawyer.   I doubt that his arguments are the best he has, or even that he fully endorses everything he says.    It certainly seems premature, to me, to conclude from his lecture that he is ‘conservative’ and ‘naive’ in his views (see Joshua Rozenberg’s article in The Guardian, November 9, 2011.).  But I may be wrong.  We shall have to wait and see whether, or to what extent, the arguments of Sumption Q.C. find their way into the judgments of Justice Sumption…

The need for judges to do constitutional theory

My positive argument can be made very briefly.  It is less of an argument, and more of a textual ‘hear, hear’ for the following passage towards the end of Sumption’s lecture:

“English judges have traditionally been shy about resorting to large constitutional theories to explain their judgments. This is consistent with the pragmatic and undemonstrative traditions of English law, and its distaste for rhetoric and all-embracing propositions. However, the reticence of English judges about the constitutional implications of their decisions has had unfortunate consequences. It has meant that English public law has not developed a coherent or principled basis for distinguishing between those questions which are properly a matter for decision by politicians answerable to Parliament and the electorate, and those which are properly for decision by the courts”  (22)

Whether or not this is a fair assessment of the record of English judges, the broad implications of the passage must be correct.   The proper division of responsibilities between courts, the executive and the legislature is a deeply controversial, moral question.   It can only be answered by reference to some theory of why certain types of decisions should be left to one or other branch of government.    The greater the willingness of judges to make explicit their constitutional theory, the greater the prospects for a coherent and principled model of the separation of powers.

Sumption supports this general view with a careful account of the relevance of judicial deference/restraint/reticence (call it what you will) to public law adjudication.

First, judicial deference, where appropriate, is not deference to the minister; it is deference to “the constitutional separation of powers which has made the minister the decision-maker, and not him.”  (18)     To put this point differently, judges should not defer at all; they should simply exercise their proper constitutional function on some principled account of what that function should be.   This is a point made repeatedly by Trevor Allan in his work on deference.

Secondly, Sumption plays down the significance of ‘institutional’ reasons for judicial deference.   Factors such as “the lack of justiciable standards by which to assess [particular areas of policy-making], the limitations of the court’s expertise, and the indirect impact which an adverse decision may have on interests not represented before the court”, Sumption argues, “reduce to the level of a practical impediment what is actually an important issue of principle.” (20)   The proper basis for judicial power, Sumption reiterates, must be the general application of an underlying constitutional principle across the whole range of government activity.

This distinction between ‘institutional/practical’ reasons and principled reasons for judicial restraint recalls Jeffrey Jowell’s distinction between the ‘institutional’ and ‘constitutional’ competence of courts.  Jowell and Sumption may not be in full agreement though.   For Jowell, institutional reasons for deference are themselves moral reasons (as opposed to practical, unprincipled reasons).    Jowell must be right on this point.    The question of what counts as a ‘justiciable standard’ must depend on some principled account of what types of standards judges should apply.    Similarly, the extent to which courts require special ‘expertise’ must depend on some principled account of what type of judgement courts should make about the evidence before them (I shall  have more to say about these points below).

Perhaps Allan, Sumption and Jowell are all ultimately saying roughly the same thing: that  an account of the proper role of judges requires a principled theory of a range of constitutional and institutional factors.    As Allan has helpfully put it, the label ‘deference’ is a conclusion about how we should understand those factors.

So What Should Courts Do?

Having encouraged judges to get stuck into constitutional theory, how far does Sumption himself take us towards a convincing theory of role of judges?    This brings me to my negative argument.   It is striking as one reads Sumption’s lecture how little argument there is about what judges should do.    There are heaps of warnings about what judges should not do, and how judges have strayed outside their proper constitutional role (whatever that might be): judges should not intervene in areas of ‘macro-policy’ (6), judges should not use judicial review as a means of expressing their ‘aversion’ to a policy (6), judges should not legislate (7), judges should not balance competing policies (9), judges should not attempt to resolve inherently political issues (18-19), etc, etc.     At the same time, Sumption gives plenty of rich and insightful argument about the value of politics as a mode of policy-making:   politics is an “essential tool of compromise” (17), the only means of determining the public interest, and the only way of ensuring democratic, public accountability on sensitive issues of public policy (21).

There is no question that a comprehensive theory of the role of judges vis-a-vis the political branches of government must include a detailed account of legislation, politics, policy, and democratic accountability   Those theorists who advocate a so-called ‘political’ or ‘republican’ understanding of the constitution place particular emphasis on these types of things.   As does Jeremy Waldron in his own uniquely challenging way.     But these types of things make up just one side of the constitutional equation.     We also need a positive account of precisely what role judges and courts should have in the constitution.   How should judges interpret statutes?   What limits should judges place on the exercise of executive discretion?   As I have said, Sumption doesn’t take us very far at all with those types of questions.   He assures us that judicial review is not ‘unnecessary’ (18); and he insists that we need to ‘sort out the law which judges [should] administer’ (19);  but, beyond that, he offers only the most indistinct account of judges’ job description.

Take the following familiar situation described by Sumption early on in his lecture (6).  A statute gives a minister an apparently unqualified power to act ‘as he or she thinks fit’.  The court has to decide whether the minister has abused this power.    How should a judge decide this question?    We can infer from Sumption’s account of what judges should not do that they should apply the “clear literal meaning [of] the statute”, or they should try to find “sufficient and admissible evidence of the actual [Parliamentary intention].”  (7)    But the text of statute will very often (if not always) bear many different possible meanings; and it may be altogether unclear from the text (or indeed from Hansard) what meaning Parliament intended.   What should a judge do then?      Sumption seems to have no answer to this question beyond telling us that, at this point, a judge’s decision will cease to be a legal decision: judges will instead inevitably cross over into the forbidden territory of policy-making and legislation.

Sumption’s failure (at least in this lecture) to advance a rigorous theory of the judicial role is symptomatic of an unfortunate tendency among British constitutional lawyers and theorists.  Different views on the role of judges are all too often expressed in metaphors or empty slogans: judges should apply ‘a light touch’ or a ‘hands-off’ approach, or a ‘progressive’ approach to judicial review.    The fix for this tendency, I think, is a much closer engagement with legal theory alongside political theory.     If it is thought that judges should give effect to the law, then judges and theorists need to grapple with the question of what counts as a legal right, duty or power; and they need to think about what it means for officials or institutions to be governed by law (or the rule of law).    These are difficult and controversial questions, but judges and theorists have no option but to confront them.    Judges can only make a principled judgment about when to impugn a ministerial decision if they have put together a theory both of politics, policy and democracy, and of law, the rule of law, and individual rights.   I would add that judges should be as willing to spell out their legal theory as their political theory.    Given his general sympathy to judges doing theory, it would be surprising if Sumption were to disagree with me about this.

Stuart Lakin is a Lecturer in Law at the University of Reading

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Tom Adams: Lord Sumption and Judicial Responsibility

Lord Sumption has for some time been an important man, and very recently became more important.[1] Indeed, he was too important already on the 9th of November 2011 for Lincoln’s inn, which reached capacity long before he read the opening lines of his F A Mann lecture. The lecture concerned a big question, quite possibly the question for public law scholarship: ‘How far can judicial review go before it trespasses on the proper function of government and the legislature in a democracy?’  Not only did the lecture attempt to tackle this fundamental issue, but it did so with the stated aim of avoiding what Sumption considered to be the narrow focus of ‘the academic literature’. For this concerned itself too much with ‘the experience of modern Britain’. What was needed, in order to arrive at a satisfying answer to the question, was ‘a longer historical perspective and a broader geographical range’.

The first section of the speech did as promised and placed the question of judicial legitimacy in this broader context. France was hailed as a model of judicial restraint, at least until 1958 when the constitution of the Fifth Republic heralded the birth of the Conseil Constitutionnel. This model of deference was attributed, in part, to the fact that the Counseil d’Etat (the senior administrative court in France) has always drawn its membership ‘from the ranks of senior administrators’. By way of contrast the constitution of the United States, founded by men who were ‘suspicious of democracy’, favoured strong legal controls on the exercise of public power, controls so strong that they questioned the US’s credentials as a functioning democracy:

‘In one sense it can be said that the unspoken object of most modern democratic constitutions is to treat the people as a source of legitimacy, while placing barriers between them and the levers of power. One of these barriers is the concept of representation… But another barrier is law… France, like every other functioning democracy, has adopted the first technique but rejected the second. The United States has adopted both.’

Sumption called upon his audience to see the current debate ‘between the originalists and their opponents in the United States Supreme Court’ in this light, as ‘fundamentally a debate about the permissible limits of judicial lawmaking in a democracy’. Not then, as many would see it, as a debate about the best interpretation of the vague moral standards laid down in the constitution.[2] Originalism, for Sumption, is small-c conservative only.

What then, of Britain? Where does the UK fit in the ‘spectrum extending from France at one extreme to the United States at the other’? Sumption contrasts the ‘old orthodoxy’ with a newer wave of judicial activism. Under the old approach, the function of the judiciary was to ‘interpret and enforce law’ not to ‘decide what is in the public interest’. Under the new approach the courts have apparently taken it upon themselves to determine the public interest at the expense of politics. Sumption, as one might have guessed, prefers the old orthodoxy. R v Foreign Secretary, ex p World Development Movement [1995] 1 WLR 386 is given detailed treatment as an example of the new approach. The case concerned Section 1 (1) of the Overseas Development and Co-operation Act 1980 which reads as follows:

‘The Secretary of State shall have power, for the purpose of promoting the development or maintaining the economy of a country or territory outside the United Kingdom, or the welfare of its people to furnish any person or body with assistance, whether financial, technical or of any other nature.’

In 1993, the then Foreign Secretary, Douglas Hurd, decided to spend £316 million to help finance the Pergau Dam, in Malaysia. Money for the project had originally been promised at a time when the UK was negotiating an arms deal with Malaysia worth over £1 billion.

Both the National Audit Office and the Overseas Development Administration’s own economists had advised that the expenditure was ‘markedly uneconomic’. In fact, the project would have imposed a huge cost penalty on the Malaysian economy as compared with other alternatives. The money put forward by the UK government would, at best, offset the extra cost of the dam.  Fearing damage to the UK’s ties with Malaysia, Mr Hurd went ahead anyway. To the surprise of many the High Court held that the government had acted unlawfully in providing the money. The court held that it was ‘a matter for the courts and not the secretary of state to determine whether, on the evidence… the particular conduct was or was not within the statutory purpose.’ On the basis of relevant evidence, including white papers, guidelines and the activities of previous governments, the power in section one was to be read to license economically sound development only. The proposed investment was therefore considered to be ultra vires the section. Rose LJ had the following to say:

‘It is not, in my judgement, possible to draw any material distinction between questions of propriety and regularity on the one hand, and questions of economy and efficiency of public expenditure on the other.’

This irks Sumption. He considers the judgement ‘almost to have deliberately been framed as a rejection of [the] distinction between politics and law.’ Indeed, this would have been the case had the court considered it to be its task to consider directly the merits of the policy at hand. But the court didn’t, so it isn’t. The court decided that, on the best interpretation of the statute, efficiency was a condition of the exercise of the power granted by the relevant section. The act was to be interpreted so as to fulfil the development purpose of the legislation. It was this fact that made the assessment of the economic credibility of the policy relevant to the courts task vis. policing the bounds of authority granted to the administrative body in question.

Both the development of the principle of legality and the work of the courts’ implementation of the Human Rights Act 1998 also come under fire, principally for transferring ‘out of the political arena … and into the domain of judicial decision making’ political matters.  But neither of these powers, if exercised properly, interfere with the lifeblood of Parliamentary politics. The principle of legality requires that executive action which interferes with certain fundamental interests be expressly licensed by Parliament. In requiring Parliament to face up squarely to the exercise of politically sensitive power by the executive, this principle actively engenders political debate. The Human Rights Act, itself a political creation, specifically envisages dialogue between the courts and Parliament. Legislation which is incompatible human rights cannot be struck down by the courts. Instead, they must issue a declaration of incompatibility. The final resolution of the matter remains with Parliament. Sumption notes, in passing, that in the case of the Human Rights Act it is often said that ‘the judges are only doing what Parliament has required them to do.’ This fails to convince because ‘Parliament may do many things which undermine the democratic element of our constitution’. True enough, but this is an argument against bad politics not bad judging.

This is not to deny that Sumption makes many valuable points in his lecture. His reaffirmation of the doctrine of due deference as a means of respecting, not the idiosyncratic decisions of particular ministers but instead, ‘the constitutional separation of powers’, for example, is a welcome one. This is especially so outside of the Human Rights Act context. The point was endorsed recently by Sumption’s new colleague Lord Hope in Axa General Insurance Ltd. v The Lord Advocate, where he noted, in relation to the issue of court supervision of the Scottish Parliament, ‘the advantages that flow from the depth and width of the experience of its elected members and the mandate that has been given to them by the electorate.’

Many law students develop a strong distaste for politics and a reverence, perhaps undue, for the importance of legal process and legalistic answers. Jonathan Sumption obviously never did, possibly because he studied history. Undue reverence should not, however, be replaced by undue distaste. A fair critique of the legal aspects our constitution requires that one square up to them in all of their subtlety.

 

Tom Adams is Stipendiary Lecturer in Law, St Hilda’s College, Oxford


[1] Sumption was sworn in as a member of the UK Supreme Court on the 11th of January 2012

[2] Ronald Dworkin, Freedom’s law : the moral reading of the American Constitution (Oxford University Press 1996) 1-14

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