affiliated to the International Association of Constitutional Law
Lord Sumption has for some time been an important man, and very recently became more important. 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. 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  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