UK Constitutional Law Association

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Michal Hain: Guardians of the Constitution – the Constitutional Implications of a Substantive Rule of Law

A constitutional storm is brewing. Whilst it is too early to perform the burial rites for parliamentary sovereignty, the Supreme Court’s decisions in R (UNISON) v Lord Chancellor [2017] UKSC 51 and R (Evans) v Attorney-General [2015] UKSC 21 are the beginning of the end of the principle’s unrivalled reign. Two especially thorny constitutional issues arose in both cases. One concerns the extent to which statutory interpretation can be used as a tool to resolve conflicts between cherished constitutional values (such as the rule of law) and the explicit wording of a statute. Just as importantly, a distinct question of constitutional interpretation arises with regard to deriving meaning from such values; in other words, how are courts to determine what the “rule of law” in fact demands? What is at stake in this second debate is exemplified by the controversy surrounding the doctrine of substantive due process in the constitutional law of the United States. Whilst it is clear that UNISON and Evans embody a forceful judicial response in the face of inroads on the rule of law, it is less clear what approach courts will take to interpreting constitutional principles in the future.

The case of Evans highlights the difficulties inherent in implying constitutional values into a statute where the former appear to conflict with the latter. The Attorney General had issued a certificate pursuant to section 53 of the Freedom of Information Act 2000 that allowed him to effectively overturn a decision of the Upper Tribunal where “he has on reasonable grounds formed the opinion” that the material in question should not be disclosed. The plurality consisting of Lords Neuberger, Kerr and Reed held that this must be interpreted in light of two “fundamental components of the rule of law”: first, a judicial decision is binding between the parties and cannot be set aside by the executive and, second, actions of the executive are reviewable in judicial proceedings (paras 51-52). As a result, a certificate could only be issued where there had been a subsequent material change of circumstances, the judicial determination was demonstrably flawed, or possibly other unspecified circumstances (paras 71-78). In the words of Lord Wilson, dissenting, this was no longer an exercise of interpretation, but a re-writing of the words “reasonable grounds” (para 168).

In a subsequent Case Comment, Mark Elliott warned against treating a statutory provision “as an essentially blank canvas on which to project constitutional values that operate so radically upon the provision as to overwhelm it” ([2015] PL 539, 549). Although a statute is self-evidently not a blank canvas, it is also no more than partially painted. Thus, a complete picture only emerges in the light show created by the projection of extrinsic values onto the partially complete canvas painted by the words – that is, by means of statutory interpretation. When, if ever, such judicial projections should effectively cancel out what had been painted on the canvas previously by the legislature – which was what Lord Wilson accused the plurality of doing in Evans – is an entirely different question.

It is an orthodox rule of statutory interpretation that “[f]undamental rights cannot be overridden by general or ambiguous words” so that “Parliament must squarely confront what it is doing and accept the political cost” (per Lord Hoffmann in R v Home Secretary, ex p Simms [2000] 2 AC 115, 131). The problem with demanding that Parliament make its intentions “crystal clear” (per Lady Hale in Jackson v Attorney General [2005] UKHL 56, para 159) is that judges are bound to disagree on the question of whether Parliament had done so. This is what Evans exemplifies; indeed, a majority of four judges disagreed with the plurality on this very issue.

The division in Evans can be contrasted with the unanimity in UNISON. Section 42(1) of the Tribunals, Courts and Enforcement Act 2007 provides that the Lord Chancellor may prescribe fees payable in respect of, inter alia, proceedings in Employment Tribunals and Employment Appeal Tribunals. Quashing the Lord Chancellor’s Fee Order, Lord Reed, delivering the unanimous judgment of the Court, held that the fees imposed violated “[t]he constitutional right of access to the courts [that] is inherent in the rule of law” (para 66).

Does the rule of law threaten parliamentary sovereignty, which Lord Wilson in Evans counted among the most precious constitutional principles emblematic of the United Kingdom’s democracy (para 168)? In UNISON, Lord Reed deftly parried such criticism by marrying the access to justice principle with parliamentary sovereignty and democracy:

Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade (para 68).*

This reasoning, whilst elegant in the administrative context, is a recipe for constitutional conflict where fundamental constitutional values clash with explicit legislative wording.

Even on Lord Wilson’s articulation of the point in Evans, parliamentary sovereignty is only one of the most precious constitutional principles. This implies the need for a balance to be struck in cases of conflict with other equally precious constitutional principles – an argument that must apply a fortiori when the theoretical underpinning of parliamentary sovereignty, democracy, starts pulling in a different direction. In such a case, it is hard to see how the mere invocation of parliamentary sovereignty settles anything at all. Most obviously, this issue would arise if the employment tribunal fees at issue in UNISON were now simply re-enacted by means of primary legislation. Would this not equally render “the democratic election of Members of Parliament a meaningless charade”?

The interaction between Parliament and courts engaged in judicial review is often conceptualised as a constitutional dialogue. Alison Young put the point in her blog post on Evans in the following terms:

If courts override legislation, Parliament is no longer able to effectively participate in constitutional exchanges. Its voice is overridden. In a similar manner, if the legislature empowers the executive to ignore judicial determinations, courts are unable to perform their constitutional role. Their voice in the constitutional exchange is overridden.

The limitations of the metaphor are well-known: it is not much of a dialogue if the conversation is premised on one party always having the last word. Indeed, the perennial question surrounding common law limits to Parliament’s sovereignty is focused on this question of finality. Put another way, overriding legislation no more shuts down the dialogue than preserving Parliamentary sovereignty in its orthodox guise. Parliament can always come back to the issue and attempt to legislate in a way that does not conflict with constitutional principles; the difference is that in such a world, it would be the judiciary, not the legislature, that would have the last word.

A related issue looms large at a logically distinct stage of the analysis. It is one thing to project constitutional values, such as those encapsulated by the rule of law, onto the canvas provided by the statutory text; it is another to intuit the precise contours – the shape, size, and colour – of those projected values. This problem is particularly acute where the constitutional principles are inherently contested. For instance, Lon Fuller in his famous account of the rule of law identified the following eight demands of what he called the law’s inner morality: Law should be clear, general, promulgated, consistent through time; it should also not be retroactive or require the impossible, and official action should be congruent with the declared rules. The plurality in Evans seemingly added the principle of res judicata and judicial review, and in UNISON, the entire Supreme Court considered “access to justice” to be inherent in the rule of law. Although the extent to which these principles enshrine a “substantive” conception of the rule of law as opposed to a purely “formal” one is open to debate, little, if anything, turns on the distinction for present purposes. The fundamental question remains: how are judges to know what the rule of law demands? It is with regard to this question of constitutional interpretation – i.e. the elucidation of the meaning of constitutional principles – that the US experience is instructive.

The Fifth and Fourteenth Amendment to the US Constitution provide, in relevant part, that no person shall be deprived of life, liberty or property without due process of law by Congress or the States respectively. But ever since the Supreme Court has imbued the clause with substantive meaning that goes beyond mere procedural safeguards inherent in the notion of “due process” more than one-and-a-half centuries ago, the spectre of “substantive due process” has been haunting its jurisprudence. In what remains one of the its most controversial cases, the Court held in Lochner v New York (1905) that labour regulations limiting bakers’ working hours were unconstitutional because the word “liberty” included “freedom of contract”. Even more disastrously, the doctrine was invoked in Dred Scott v Sandford (1856) to strike down an Act of Congress because it deprived citizens of their “property”. Since the “property” in question were chattel slaves, it comes as no surprise that Dred Scott is universally seen as the greatest stain on the Court’s long legacy. But the weaving of unenumerated rights into the fabric of the US Constitution also lays at the heart of the Court’s most celebrated (albeit still contentious) cases: Griswold v Connecticut (1965) (recognising a right to privacy so as to strike down a ban on contraception), Roe v Wade (1973) (recognising a right to abortions), Lawrence v Texas (2003) (de-criminalising sodomy), and Obergefell v Hodges (recognising a right to same-sex marriage).

The dissent of Curtis J in Dred Scott shows what is at stake in this debate:

[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men who, for the time being, have power to declare what the Constitution is according to their own views of what it ought to mean.

This raises the concern that a constitutional principle, the rule of law, hands power to a group of ten men and, from October onwards, two women. In truth, the rule of law, properly understood, is about the prevention of arbitrary power concentrated in the hands of a government that is itself above the law. Therefore, it in no way detracts from the fact that the administration of justice is a human exercise engaged in by men and women. To be subject to the law is to be subject to those judges.

Nevertheless, the question of how they are to go about extracting workable legal principles from constitutional values, such as the rule of law, calls for intellectual honesty. In Evans, Lord Mance pointedly remarked that “[t]he rule of law is not the same as a rule that courts must always prevail, no matter what the statute says”. But what is it? In UNISON, Lord Reed relied on the Magna Carta, a letter by a Lord Chancellor, Coke’s Institutes, Blackstone’s Commentaries, and 20th century case law concerned with barriers to commencing judicial proceedings (as opposed to the cost of doing so) to find a principle of access to justice. It also appears that the European Convention on Human Rights and Strasbourg jurisprudence will be at least “relevant” (paras 73-89). This is a start, but hardly a blueprint for the future.

Turning Lord Mance’s point on its head, it can also be asked whether parliamentary sovereignty is that same as a rule that Parliament must always prevail, no matter what the statute says. As the reams of academic literature show, there is no obviously right answer. Limits to parliamentary sovereignty have also been the subject of obiter dicta in the recent past (most famously perhaps in the judgments of Lord Steyn, Lord Hope, and Lady Hale in R (Jackson) v Attorney-General [2005] UKHL 56). The significance of Evans and UNISON lies in the combination of the plurality’s opinion in the former, which forms part of the ratio, with the unanimous decision in the latter.

Together, they represent a watershed. At least on one interpretation, two propositions emerge: (a) the rule of law can override explicit legislative wording and (b) the rule of law embodies substantive principles (e.g. res judicata, judicial review, and access to justice). It follows that principles inherent in the rule of law are capable of overriding statute. Accordingly, this would no longer be a question for academic debate, but the law of the land as a matter of stare decisis. This would truly elevate judges to the guardians of the constitution where previously it had been Parliament that, at least on an orthodox understanding, had the final word. To what extent this is the judiciary’s rightful place and the consequences of such a development are questions for another day. Luckily, there is no rush – Evans and UNISON were just the beginning.

* Interestingly, UNISON makes no reference to Evans, which may or may not be related to the identical composition of the panels in the two cases.

Michal Hain is a pupil barrister at 20 Essex Street.

(Suggested citation: M. Hain, ‘Guardians of the Constitution – the Constitutional Implications of a Substantive Rule of Law’, U.K. Const. L. Blog (12th Sept 2017) (available at https://ukconstitutionallaw.org/))

4 comments on “Michal Hain: Guardians of the Constitution – the Constitutional Implications of a Substantive Rule of Law

  1. Andrew David Thorburn
    September 12, 2017

    Taken from Ornamental Pyrographic Woodwork Co. v. Brown, comments made by Martin, B. – “If an enactment be unreasonable or improper, it is the legislature who ought to interfere and set it right. In my opinion a great deal of mischief has resulted from giving forced constructions to acts of parliament for the purposes of carrying out the supposed justice of the case.”

    I like that. If it has been seen then sort it out, especially if it causes disrepute.

  2. Alberta
    September 12, 2017

    Rule of law should follow the main principle that the law should be fairly applied. Even if this is an ambiguous term thing has to be done right!

  3. Pingback: Macron or Juncker | Verfassungsblog

  4. Pingback: Thomas Fairclough: What’s New About the Rule of Law? A Reply to Michal Hain | UK Constitutional Law Association

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