UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

Thomas Fairclough: What’s New About the Rule of Law? A Reply to Michal Hain

This blog recently published a detailed piece by Michal Hain. He made some very interesting claims that this note will examine. I start by explaining Hain’s arguments and ordering them roughly according to the way they come out in his piece. I then examine each in greater detail giving my own views. Finally, I will conclude with some general points about constitutionalism and individual cases.

First, Hain argues that “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” [emphasis added]. He argues that taken together these two cases “represent a watershed” because “two propositions emerge: (a) the rule of law can override explicit legislative wording and (b) the rule of law embodies substantive principles” [emphasis added]. From the use of the word “emerge” I take it that Hain thinks these cases are novel in their understanding of the rule of law. These cases apparently “elevate judges to the guardians of the constitution where previously it had been Parliament that…had the final word….The consequences of such a development are questions for another day. Luckily….Evans and UNISON were just the beginning” [emphasis added].

Second, Evans, Hain argues, “highlights the difficulties inherent in implying constitutional values into a statute” [emphasis added]. Using a metaphor given by Mark Elliott in his case comment on Evans Hain talks about statutory interpretation, in line with the rule of law, as being like painting on a canvass: in Hain’s opinion, judges are painting on the canvass that Parliament has already partially completed by enacting legislation. He goes on to say that this involves the “projection of extrinsic values” onto the statute. I assume, from this, that Hain means values extrinsic to the statute itself, which he seems to mean can be the rule of law and its associated values. Hain goes on to wonder when, if ever, “such judicial projections should cancel out what had been painted on the canvas previously by the legislature”. Hain goes on to question whether the strong, substantive use of the rule of law in UNISON threatens parliamentary sovereignty and suggests that the reasoning in this case “is a recipe for constitutional conflict where fundamental constitutional values clash with explicit legislative wording” [emphasis added].

I take, from all of this, that Hain is making two points: (1) Evans and UNISON, taken together, represent a new development in the rule of law’s development in that substantive principles inform legislation’s meaning; and (2) there is often a clash between legislation and the rule of law and there is a question how much the latter can overrule the former.

In this piece I aim to tackle each of the points Hain makes: (1) I argue that Evans and UNISON, whilst interesting on many vectors, do not represent a novel approach to the rule of law’s understanding or application; and (2) further that the conflict he predicts between the rule of law and statutory wording is predicated on a falsehood. There is no conflict because a statute’s wording is not isolated on an island away from constitutional principle; it can only be understood in line with the rule of law. Far from painting “extrinsic” values onto a statute a court is simply understanding the statute in its true form: it is impossible for Parliament to legislate contrary to the rule of law because the rule of law is, by definition, logically prior to Parliament.

(1) Do Evans and UNISON represent a watershed moment?

Evans and UNISON are not “watershed” cases in terms of their understanding of the rule of law or its application in the sense that Hain argues. In Evans the Supreme Court held that a statutory provision could not mean that the executive could ignore or disapply a court order merely because it had (any) objective grounds for doing so. In UNISON the Supreme Court refused to allow a statute enabling the Lord Chancellor to enact secondary legislation to set tribunal fees to be used to put fees at such a level that people would not, in practice, be able to access the tribunal system and enforce their employment rights.

Nothing here is new. The idea that the courts will not allow the executive to escape their jurisdiction is well established as part of the rule of law: see, for example, Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (HL) and R v Cheltenham Commissioners (1841) 1 QB 467. The importance of the principle that citizens should have redress from executive action was confirmed in, for example, Jackson v Her Majesty’s Attorney General [2005] UKHL 56, [2006] 1 AC 262. In Evans Lord Neuberger relied on all of these cases (and others) as supporting the well-established constitutional principle of judicial supervision of the executive (see [53]-[58]).

Likewise, I am not certain there is anything too novel in UNISON. Two principles are used in the case to find the fees order ultra vires and neither seems particularly new. The first is the idea that where a general power is given to the executive it will be read in line with constitutional principles. Therefore, in UNISON the ability to proscribe fees could not be understood as conferring a power to set fees at a level that would infringe the right of access to courts. This approach to understanding statutes was well established far before UNISON, the two modern examples being R v Secretary of State for the Home Department, ex p Simms [1999] 2 AC 115 (HL) and R v Secretary of State for the Home Department, ex p Pierson [1998] AC 539 (HL).

The second principle that Hain draws from UNISON is the purportedly novel idea that the rule of law involves substantive principles, not merely procedural ones (though, of course, the line between the two is often blurred). But, again, this is nothing new. Specifically, in relation to access to the courts, this has been well established. For example, in Raymond v Honey [1983] 1 AC 1, when examining whether a broad statutory provision gave the Secretary of State for the Home Department the ability to refuse a prisoner access to the courts, Lord Wilberforce stated that there was nothing in the Act that conferred powers to stop “unimpeded access to the courts”. His Lordship decided the Home Secretary could not do this since access to the court is “so basic a right” (12-13 of the case). As Lord Reed notes in UNISON “access to justice is not an idea recently imported from the continent of Europe, but has long been embedded in our constitutional law. The case has…been argued…on the basis of the common law right of access to justice” and “many examples can be found of judicial recognition of the constitutional right of unimpeded access to the courts” ([64]). Indeed, a great many other substantive rights have been recognised as part of the rule of law though space precludes detailing them here.

It is therefore not clear what novel point about the rule of law Evans and UNISON represent. The principles relied on and the approaches taken in the cases seem perfectly consistent with past constitutional practice and principle. Statutes have been read in line with the rule of law for centuries and the rule of law has itself been recognised as incorporating substantive elements for many years.

This seems to be a perennial problem in discussing constitutional law; every time a case comes along that openly uses the rule of law in its substantive sense it is heralded as a major change. Instead, I argue, when one takes the longer view one can easily see such cases as the latest in a long line of internally consistent decisions applying the (abstract) rule of law to concrete (often novel) facts.

 (2) Legislation and the rule of law

Hain also suggests that there is a tension, in cases like Evans and UNISON, between the legislation and the rule of law. He suggests that viewing statutes through the rule of law lens somehow threatens parliamentary sovereignty and “is a recipe for constitutional conflict where fundamental constitutional values clash with explicit legislative wording”.  There are two points here. First, it is not clear what Hain means by “explicit” wording. In neither Evans nor UNISON was the wording of sufficient clarity that one could say it clearly authorises a breach of well-established common law principles. The statute in question in Evans merely said “reasonable grounds” were needed to issue a certificate stating the executive would not comply with court orders. What is reasonable clearly depends on context and, as Lord Neuberger pointed out, it would rarely be the case that it would be reasonable to trample over well-established principles. Likewise, in UNISON the statute only provided for the ability to proscribe fees; it was certainly not “explicit” that this included setting fees that would preclude many people from accessing the courts. This seems to me to be common sense: a hypothetical statute providing that the Home Secretary may “enact orders for the furthering of good order in prisons” clearly could not rely on that statute to chain prisoners to the walls 24 hours a day nor to drug them all into a stupor. Regardless of s6 Human Rights Act 1998 rendering such actions ultra vires the rule of law would obviously give such limitations to the statute.

The second point I wish to make is more fundamental to our understanding of the rule of law, Parliamentary supremacy, and the relationship between the two. Hain seems to rely on the idea that the law is fully formed from the legislation’s plain wording (presumably on a literal approach) and that the courts are adding external rule of law considerations in, thus changing the law. This comes out when he says Evans involves “implying constitutional values into a statute” and the “projection of extrinsic” values onto the statute. As I said above, I assume this means values external to the statute itself. These external values, he suggests, are capable of cancelling out what the legislature provided for, thus there can be a clash between the rule of law and legislation.

This, in my view, is mistaken because it fails to recognise the truth about the rule of law: it is logically prior to law and legal powers. At the most general level Lord Hope tells us “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based” (see Jackson v Her Majesty’s Attorney-General [2005] UKHL 56, [107]), which makes theoretical sense because all organs of the state (including Parliament) derive their powers from law. This means that state bodies must act with respect for the rule of law or they are acting outside of their own powers (on this see Stuart Lakin’s work). This means, as Trevor Allan points out in The Sovereignty of Law (OUP 2013), 88, “the rule of law is not merely an ideal or aspiration external to the law…it is a value internal to law itself, informing and guiding our efforts to ascertain…legal rights”. There is no such thing, on this view, as being able to know what legislation means and then changing it with the rule of law, which acts as an external or extrinsic value. The rule of law is internal. It is the controlling factor. Legal powers conferred by statute carry with them the implicit, intrinsic limitation that the powers cannot be used contrary to the rule of law.

There is no clash between legislation and the rule of law because the former’s meaning cannot be ascertained without reference to the latter. This may at times give a very non-literal meaning to the statute (e.g. the statutes in Anisminic or Evans) but there is no reason why we need to justify every step we take away from a literal meaning. This puts the cart before the horse. Instead, the meaning of the statute is that which best accords with a balance between legislative purpose and legal principle based on the rule of law since the rule of law is logically prior to the legislation. Hain is therefore wrong to argue that “judicial projections” can cancel out what was previously legislature made law; the legislature can only legitimately act in a way that accords with the rule of law and the judiciary are seeking, in any given case, to discover what the law is. This necessarily takes account of the words and the rule of law because the former cannot exist in isolation from the latter. To act as if there is a new conflict here is mistaken and overstating the point. There may, of course, be a conflict between what certain politicians wanted when they voted for a Bill and what a statute means when properly read through a rule of law lens but that is not the same as saying there is a clash between Parliament and the rule of law.

Final thoughts

Michal Hain’s argument is interesting and it certainly recognises important questions about the British constitution but it falls into some common traps. Perhaps the most dangerous of these is the assumption or view that applying a substantive rule of law is novel. As I have stressed above, it is not. It is a perennial problem in public law that we treat it as such. Likewise, from a more pessimistic view, seeing the rule of law’s substantive features as somehow new is problematic because it means we see the rule of law as being easily changed as opposed to permanent. It opens up judges to criticism on the grounds that they have acted in an entirely new fashion as opposed to acting consistently with the rule of law’s general operation (this is not to say that we cannot criticise judges for getting the balance wrong). This implies they have, or could have, acted outside of their bounds by acting in a startlingly new way, which allows politicians to attack them more readily despite this demonstrably not being the case.

I argue that Evans and UNISON do not represent revolutionary understandings or operations of the rule of law. They represent the judiciary’s continued insistence on, and application of, the rule of law. This is not to say we will always agree on what it requires (Hain is quite right to point to the disagreement in Evans) but it is to say that the rule of law is a permanent feature of the British constitution.

Thomas Fairclough is an AHRC funded PhD Candidate at the University of Cambridge.

(Suggested citation: T. Fairclough, ‘What’s New About the Rule of Law? A Reply to Michal Hain’, U.K. Const. L. Blog (18th Sept. 2017) (available at https://ukconstitutionallaw.org/))

3 comments on “Thomas Fairclough: What’s New About the Rule of Law? A Reply to Michal Hain

  1. Andrew David Thorburn
    September 18, 2017

    This means, as Trevor Allan points out in The Sovereignty of Law (OUP 2013), 88, “the rule of law is not merely an ideal or aspiration external to the law…it is a value internal to law itself, informing and guiding our efforts to ascertain…legal rights”.

    More should have been said on the above. The rule of law applies to everyone, it would have been interesting if the author could have expanded on why some issues start the legal ball rolling and others do not. There is clearly a story on what ‘triggers’ a process under the rule of law, and I’m not just talking about money.

  2. Car
    September 18, 2017

    Brilliant!

  3. Alex
    October 4, 2017

    Why ‘substantive’? For my money, Evans is a Padfield case – statutory powers must be used in such a way as pursues the purpose of the statute – insofar as the formal/substantive distinction makes sense, this lies on the formal side (after all, the statutory purpose might be just or unjust). As for UNISON, access to the courts is absolutely central to the formal conception – it’s about procedures not outcomes.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: