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Imagine that Parliament has recently passed a provision authorising the indefinite detention without trial of suspected terrorists. The measure was passed during a public panic about terrorism. Public opinion and the press and parliamentarians of the party in government which promoted the legislation were strongly in favour of using such powers. The Home Secretary orders the detention under that provision of suspect A. A applies to the court for release on the ground that the provision in the Act is contrary to fundamental common law principles and the European Convention on Human Rights. The court finds that the Act is indeed defective in these ways, that compliance by state bodies with fundamental common law principles and the ECHR is a requirement of the rule of law (as it is understood by the courts), a constitutional principle which binds all bodies including Parliament. The court orders the minister to rescind his order for the detention of A and orders the prison governor to release A.
What would happen if the minister refused to obey the court order? It would be easy to reply: ‘The minister would be committed for contempt of court if he refused to release or order the release of the suspect, of course’, implying that this is an obvious answer to an obviously stupid question. But the implications of such a finding for the relationships between politicians and the courts need to be thought through before such an answer is accepted.
Our system, particularly because we lack a written constitution which is considered by the institutions of government and by the public to legitimate such activities of the courts, depends for its working in part upon mutual respect between institutions, particularly between the courts on the one hand and Parliament and executive bodies on the other. Lord Carswell had this in mind in his speech in the Jackson case when he referred to the mutual respect which has long existed between the legislature and the courts, and he expressed reluctance to endanger that tradition.
According to M v Home Office, a court might, having made an order which a minister disobeyed, just declare the minister to be in contempt. A mere declaration would not do the court’s authority any good at all in this hypothetical situation. It is unlikely that the press or the members of the House of Commons would take the court’s side and press the government to respond positively to the declaration. If the declaration were ignored, the lesson that the executive learned would be that it can get away with such responses to the courts. Would we want that?
Alternatively the court could commit the Home Secretary to prison for contempt. The Minister of Justice might then order the prison governor to release the Home Secretary on the basis that it was unconstitutional, anti-democratic and unlawful – a breach of the rule of law as understood by politicians – for the court to refuse to give effect to an Act of Parliament. The prison governor might obey the Minister of Justice and release the Home Secretary while continuing to detain A, and so himself be committed for contempt, along with the Minister of Justice. The battle would continue, with press and public opinion probably behind the ministers.
So such a court order might turn out not to be practically enforceable if resisted by government on the ground that it was not legitimate for the courts to change the law unilaterally in such a way. Or, if the order was enforced, the backlash might be that Parliament legislates to politicise the judicial appointment system, the courts could then be packed with judges sympathetic to the government, the Court Service could come under ministerial directions as to the deployment of judges and the listing of cases so as to ensure that ‘unreliable’ judges did not sit on certain kinds of case, ouster clauses could become commonplace. And so on. I think the courts would be defeated, and in the end the Supreme Court would exercise its power under the Practice Statement of 1966 to reverse its position and reinstate the doctrine of parliamentary supremacy. But by then untold damage would have been done to the respect in which the courts are held in government, in Parliament and by the general public and to good relations between those institutions. The rule of law itself (as generally understood in legal circles) would have been weakened. The culture would have changed.
The relationship between the executive and the courts in the UK, lacking as it does a written constitution which defines that relationship, depends upon reciprocity, trust, cooperation – the basic elements of human social interaction. Any system of government involves such interaction. If those collapse then the very constitutional system itself might collapse into recurring conflicts between the courts and the executive, tit for tat battles, ostracism of the courts by ministers, and mistrust. It is by no means certain that the rule of law would win over politics and parliamentary supremacy in such a situation.
But, you will be thinking, surely this hypothetical is fanciful: normally ministers do obey court orders. Yes – and that is part of the culture of the rule of law. But if the courts were to challenge parliamentary supremacy, ministers would be able to invoke a whole lot of arguments in support of their refusal to obey the court, arguments which do not apply in relation to other cases – democracy, separation of powers, etc. Indeed it is likely that there would be a great hue and cry against the courts not only from the government, but from MPs, the press and the public. In my view therefore it could well be extremely unwise, damaging to the authority of the judiciary and the rule of law itself and to the stability of our constitutional arrangements, and counter- productive for the courts to strike down a provision in an Act, however much it is contrary to some of the elements of the rule of law and other constitutional ‘principles’. Bear in mind that the duties of judges are not limited to upholding individuals’ rights. They include ensuring the practical working of constitutional arrangements, for instance relationships with the EU and between the UK and devolved bodies, which in turn facilitate the rule of law. There are in other words respectable consequentialist reasons for judges in the UK accepting parliamentary sovereignty and holding back from making judgments that might be impossible to enforce against the executive in such a nuclear option situation, especially when we take into account the non-legal environment in which government and Parliament operate in the UK and which uphold constitutional principles.
So in my view a ‘principle’ that the rule of law is the controlling principle and might entitle courts to disapply statutory provisions – as Lord Hope indicated in Jackson – would come up against the typical, pragmatic and wise English response: that is all very well in principle and theory, but what about the practice? The practice of striking down legislation in our unwritten constitution and constitutional culture would not work.
Thus I suggest that an important rationale for the British courts’ recognition of Acts of Parliament as the highest form of law is based in comity between institutions and workability: pragmatic principles established over centuries that the courts will refrain from questioning the legal validity of Acts passed by the UK Parliament, and members of the two Houses of Parliament will respect the courts and their decisions and will not seek to undermine them and the rule of law.
I suspect therefore that the dominant though unarticulated reason why courts in the UK accept parliamentary sovereignty is that it represents a way of avoiding a conflict between the courts and the executive which the courts could not win. It could well be different if the UK had a written Constitution which mandated the courts to refuse to give effect to ‘unconstitutional’ laws. But that is not the current position.
This is not something that the judges, or others as far as I know, have discussed publicly. But Lord Justice Stephen Sedley had the following to say in his LRB review of Vernon Bogdanor’s book The New British Constitution (2009).
‘…what would happen in real life if the higher courts treated … a withdrawal of their jurisdiction [by a provision in an Act which ousted judicial review of a tribunal’s decisions on asylum claims] as unconstitutional, ignored it and allowed an asylum seeker’s appeal? The home secretary, not recognising their jurisdiction, would proceed with deportation, and the court would arraign him for contempt. How would it end? We do not know, and most of us would prefer not to find out’.
Sedley discussed the issue again in Ashes and Sparks (2011). Commenting on what would have happened if the ouster clause in the Immigration and Asylum (Treatment of Claimants) Bill had been passed, if the courts had refused to give effect to it, and if the Home Secretary had been found to be in contempt for disobeying their order, he wrote:
‘And then? There would be no winner, no famous victory even, in such a confrontation. Even so …. it was not necessarily a bad thing that [the proposed ouster clause] had gone as far as it had: the government had realised that there were limits to what it could properly ask Parliament to do; constitutional lawyers had realised that the limits were less secure than they had thought, and the sky still seemed to be in place’.
Interestingly, in relation to our close constitutional cousin, New Zealand, Matthew Palmer has recently written that:
‘Institutionally, over the long term and particularly in New Zealand, the independence of the judiciary depends on the forbearance of the political branches of government. Cabinet and Parliament have the formal tools available in New Zealand’s constitution to undermine the independence of the judiciary if they wished: through appointments, dismissals, under-resourcing or restructuring various benches.’
Palmer suggests that the approach of parliamentarians is based in part on the high standing of the judiciary in public opinion; that standing could be damaged by a series of negative public reactions to judicial decisions and ‘… whether consciously or unconsciously, the judiciary, especially at the level of Heads of Bench and the Supreme Court, understands and should understand the importance of public opinion, according to a medium and long-term perspective, for the sustenance of its branch of government’.
Griffith was right in ‘The Political Constitution’ that many parts of our constitution (not all) are the outcome of conflicts. The restoration of parliamentary sovereignty would be the outcome of a conflict between the courts and the executive, but the courts would have lost authority and face in the course of that conflict.
Dawn Oliver is Emeritus Professor of Constitutional Law at University College London.