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A great deal of the controversy surrounding the recent case of Axa General Insurance Ltd v Lord Advocate  UKSC 46, already much discussed on this blog, stems from the notion of ‘exceptional circumstances review’. The Supreme Court’s decision that it has the authority as a matter of common law to reject Acts of the Scottish Parliament (ASPs) in exceptional circumstances raises a range of important constitutional questions: is the Supreme Court’s interpretation of the Scotland Act 1998, and in particular section 29, compelling, or could the legislation be read to exhaust the possibility of common law limits on ASPs? Is it normatively attractive for courts to arrogate to themselves the final say over the constitutionality of legislation enacted by a democratic legislature? Is the power outlined by the Supreme Court in Axa only effective against the primary legislation enacted by devolved legislatures, or is the sovereignty of the UK Parliament also now threatened?
Doubtlessly other critical questions can also be identified, and yet, as important as these issues are, this post will focus on a more general matter. Is the very notion of exceptional circumstances review, detached from some of the particularities of the UK constitution, a useful one? Such an approach seems appropriate in light of Lord Hope’s comments in Axa that in developing such a power, the Supreme Court was in ‘uncharted territory’, with the issue therefore having ‘to be addressed as one of principle’ .
It might initially be objected that the point of exceptional circumstances review is obvious – it serves to prevent gravely iniquitous legislation from being recognised as law – rendering further reflection on its purpose essentially redundant. Yet while we may all agree that the avoidance of bad law is a worthwhile objective, it is not at all clear that giving courts the authority to review legislation in exceptional circumstances is an effective way to achieve it. Two particular issues with the concept can be discerned.
1) What circumstances count as exceptional?
The very notion of exceptional circumstances is inherently vague, offering little indication as to the scope or content of the power claimed. Even if we accept that such a power would be exercised only in genuinely exceptional situations (although as Jeffrey Goldsworthy and Mark Tushnet have both argued, it is in the nature of courts to seek to test the boundaries of a power once obtained, and in so doing expand its scope beyond what was originally envisaged), we will necessarily be reliant on judicial evaluations of exceptionality. And while such judgments may well be contestable, perhaps the bigger problem is that they are likely to be difficult to predict.
If we return to Axa for a moment, the consideration there given to exceptional circumstances offers sparse guidance as to the situations in which the Supreme Court’s new authority will be invoked. The rule of law is cited by both Lord Hope  and Lord Reed  as constituting the ‘ultimate controlling factor’ at the root of the court’s new power, but the deployment of such a disputed, fluid concept only serves to amplify, rather than cure, the already conspicuous uncertainty. An alternative (or perhaps complementary?) foundation suggested by both judges is that of fundamental individual rights, yet even if an account of such rights could be agreed, little clarity is gained unless we can also establish the level of interference that will be unjustifiable.
Beyond Axa, other immutable values that require absolute protection might also be identified; Lord Steyn, for example, argues in R. (Jackson) v Attorney General  UKHL 56 that ‘oppressive and wholly undemocratic legislation’ could not be tolerated . Yet the difficulty persists in relation to this formulation too, for the truly critical problem is not in identifying appropriate abstract values, but that those values must remain abstract to attract broad acceptance. Indeed, it is when we come to differentiate between those violations of the rule of law, or fundamental rights, or democracy that are tolerable, and those that are exceptionally intolerable, that consensus is liable to break down, with the corollary that the likelihood of judicial intervention becomes hard to foresee.
The uncertainty inherent in determining what is an exceptional violation of constitutional principle makes this power remote from ordinary citizens and inadequate for political decision-makers. Citizens will find it a challenge to determine whether legislation that offends their conception of justice will be similarly received by the judiciary, making a decision to seek judicial review fraught with complexity. Legislators and officials will glean little useful guidance as to how they should properly exercise their power from the underdeveloped premise that flawed legislation may be exceptionally struck down. And with so little which is clear and certain settled in advance, any judicial decision to exercise, or not to exercise, this authority may appear arbitrary to aggrieved parties. There is therefore little to recommend the cultivation of a power of exceptional circumstances review over the protection of fundamental values through some variety of Bill of Rights, regardless of how imperfect we might believe such rights instruments to be.
2) Is this a legal power at all?
One potential response to what has been argued above is that such a power to reject legislation should only be used where there is no uncertainty. The judicial exercise of such a power would, in other words, be justified where there existed comprehensive agreement as to the exceptional deficiency of some specific legislative act. But how, in practice, would it ever be possible for the circumstances of such agreement to be satisfactorily established?
We might then, in contrast, question whether such a power which can only be imprecisely formulated is really a legal power at all. This is not to claim that such a vague power is conceptually incapable of being considered legal, but to query whether the Supreme Court has actually articulated exceptional circumstances review as a legal doctrine. It seems clear that this is a power designed not to be used. It would be extremely difficult for courts to settle definitively the kind of constitutional crises in which an exceptional power to reject legislation could conceivably be invoked. Would we really seek to challenge a genuinely fundamental repudiation of constitutional values through litigation? Even if an expedited means of bringing legal proceedings were available, courts are simply not equipped to prevail over other institutions of government in brute constitutional conflicts, and would be unlikely to be able to provide any effective relief in times of severe political strife. While this power remains unused, however, it also goes essentially unchallenged, and maintains a degree of relevance in constitutional discourse, even if this is only notional.
It might, then, be better to understand judicial assertions about exceptional circumstances review as an emanation of inter-institutional manoeuvring, rather than a claim about the power of the courts under the present constitutional order to reject legislative acts in crisis situations. Courts as institutions lack a formal outlet through which they can encourage the legislature, or the government that controls it, to take rights, or the rule of law, or democracy, seriously. Yet it is possible for the courts to communicate with the other institutions of government through their reported judgments, and a threat to establish a supervisory jurisdiction over legislative functions could be seen to have a similar effect as such encouragement. In light of this, it is perhaps significant that the only specific example of exceptional circumstances offered both in Axa  and Jackson  is legislative action to oust or abolish the courts’ ordinary power of judicial review over administrative action, with the notion of the rule of law arguably used here as a conduit to protect the judges’ jurisdiction against encroachment by other institutions. A court may purport, therefore, to be developing a jurisdiction to reject legislation in extreme situations, yet we can make sense of such endeavours without concluding that this is a power they do in fact possess as a matter of constitutional law.
Yet if judicial claims about the potential for exceptional circumstances review are simply a means of reemphasising the importance of a number of fundamental constitutional values to the other institutions of government, are they really of any great interest? After all, when it is considered that these fundamental principles must already underpin the existing constitutional settlement, and be embedded to a substantial extent in constitutional practice, the judicial reiteration of their significance may appear to be a rather banal message, in contrast with the controversial means of its delivery. Further, given the abstraction necessarily involved in their formulation, the invocation of such elementary principles, devoid of critical detail, will do little to assist with the resolution of the sort of difficult constitutional questions which must be confronted in mundane, as well as exceptional, situations.
What then, we might wonder, is the point of exceptional circumstances review?
Dr Mike Gordon is Lecturer in Public Law at the Liverpool Law School, University of Liverpool.