Judicial and Political Decision-Making: The Uncertain Boundary
The F.A. Mann Lecture, 2011
Jonathan Sumption Q.C.
One of the most significant constitutional changes to occur in Britain since the Second World War has been the rise in the political significance of the judiciary, as a result of the increasingly vigorous exercise of its powers of judicial review. I want, in the course of this lecture, to ask a fundamental question about the relations between the judiciary and the two political arms of the state, the executive and the legislature. How far can judicial review go before it trespasses on the proper function of government and the legislature in a democracy? This is not a new question. It has been debated for many years in the academic literature. But it has never troubled practitioners, and rarely features in the judgments of the courts. Even in the academic literature, the debate has suffered from a relatively narrow focus on the experience of modern Britain. It needs, I think a longer historical perspective and a broader geographical range.
The power of governments and its limitation by law, has been a controversial question since at least the seventeenth century. But the modern history of this issue really begins with the adoption of universal male suffrage by most western countries in the course of the nineteenth century. The arrival of a broadly based democracy was invariably followed by rising public expectations of the state: as the provider of basic standards of public amenity, as the guarantor of minimum levels of security and, increasingly, as a regulator of economic activity and a protector against misfortune of every kind. These expectations are still rising, a point which is, I think, worth making at the outset of any discussion of judicial constraints on the action of the state. The immense powers exercised by modern governments over their own citizens have arisen almost entirely from the collective aspirations of the population at large, aspirations which depend for their fulfilment on persistent intervention by the state in many areas of our national life, and which no democratic politician can ignore. It is no longer sensible to view this as a power-grab by ambitious ministers and officials, as the opponents of the Crown did in the simpler world of seventeenth century England and some commentators still do. The truth is that a powerful executive is inherent in the democratic character of the modern state.
The proper role of the judiciary in constraining the action of the democratic state was a question first addressed in France and the United States in the course of the revolutions that engulfed both countries at the end of the eighteenth century. In both of them, existential crises of the state made it necessary to reflect on the fundamental principles of the constitution, and to ask how far the policies of the executive and legislative branches of the state could properly be constrained by courts of law. What is interesting about the experience of France and the United States is that it led them to diametrically opposed conclusions, which colour the approach in both countries to this day.
France was the first country in the world to develop a coherent scheme of public or administrative law. Yet successive French constitutions from 1799 to 1958 have been characterised by a persistent hostility to judicial interference with the two other branches of the state, on the ground that in a democratic constitution the popular will was the sole source of legitimacy. Portalis, the leading draftsman of the Napoleonic codes, was suspicious of all judge-made law and particularly objected to judicial review. “Juger l’administration”, he said, “c’est aussi administrer”. Or, loosely translated, “judicial review of government is tantamount to judicial government.” This sentiment, largely shared by other founding spirits of the modern French state, explains why public law in France has always been the exclusive domain of a separate hierarchy of administrative courts, culminating in the Conseil d’Etat. Since its foundation in 1799, the Conseil d’Etat has gradually acquired the characteristics of an independent court of law. But it originated as an internal organ of the executive, and its membership is still drawn in part from the ranks of senior administrators who are not jurists. The section du contentieux, which deals with public law litigation, remains a great deal more deferential to the policy-making organs of the state than English judges are. Until recently there was no French institution empowered to review the constitutionality of an act of the legislature. The Conseil Constitutionnel, which was created for this purpose by the constitution of the Fifth Republic, is a purely consultative body comprising political appointees without legal training and all living ex presidents of the Republic. The object, in the words of its godfather, General de Gaulle, was to avoid the “rule of judges”, which the General and his principal adviser Réné Cassin regarded as one of the more deplorable features of the constitution of the United States. De Gaulle was particularly opposed to the idea of a French Supreme Court, enjoying the power to test legislative or governmental action by reference to fundamental principle. “The only Supreme Court in France”, he observed, “is the people”.
Whereas France has traditionally restricted judicial intervention in the workings of the state because it was a threat to democracy, the United States originally embraced it for exactly the same reason. The makers of the US Constitution were suspicious of democracy. They were the heirs of a political revolution in which the powers of the British Crown had been challenged in the name of the sovereign people. But like the conservative eighteenth century Englishmen that they were, they sought to contain the wishes of the sovereign people by a system of checks and balances which included entrenched judicial power. In his contributions to The Federalist Papers, James Madison, the main author and advocate of the Constitution, refused to use the word “democracy”. He regarded it as a term of abuse, an invitation to religious bigotry, inflation, the abolition of debts, the redistribution of wealth and what he compendiously called “other improper or wicked projects”. Echoes of this tension between democracy and judicial intervention can be heard in the United States to this day. The debate between the originalists and their opponents on the United States Supreme Court is fundamentally a debate about the permissible limits of judicial lawmaking in a democracy, where the law as declared by the Supreme Court would not necessarily have obtained Congressional or electoral endorsement.
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, which filters out popular prejudice by vesting the ultimate power of decision in an elected political class united by a body of shared values, which may sometimes be at odds with popular sentiment. But another barrier is law, with its formidable bias in favour of private rights and traditional social expectations, and a corps of professional judges to administer it who are not accountable to the electorate for their decisions. France, like every other functioning democracy, has adopted the first technique but rejected the second. The United States has adopted both.
This contrast between the American and French approaches to judicial intervention, has been drawn before. It was drawn, notably, by Alexis de Tocqueville, whose book Democracy in America, written in the 1830s, remains to this day one of the most penetrating and prophetic analyses ever written about the dilemmas of a democratic constitution. De Tocqueville observed that the American judges enjoyed a degree of political power which was unique among the societies of his own day. He attributed this partly to their power to found their decisions on the Constitution, a source of authority superior to the ordinary law that De Tocqueville regarded as inherently political. He also thought that it owed something to the arcane and inaccessible sources of the common law, which enabled American judges to cover their tracks more successfully than a French judge applying a codified system could have done. De Tocqueville described the judiciary under a common law system as the masters of a mysterious and prestigious science, comparable to the hereditary priests of Ptolemaic Egypt. Armed with this advantage, the judges of the United States were able to present as ancient legal wisdom that which was in reality modern political doctrine. De Tocqueville considered the political role of American judges to be by its nature aristocratic, and inherently opposed to the democratic element of the constitution.
“Men who have made a special study of the law [he wrote] derive from it certain habits of order, a taste for due form, and an instinctive respect for the logical connection of ideas, which naturally makes them very hostile to the revolutionary spirit and to the unreflective passions of the multitude... This aristocratic character, which I hold to be common to the legal profession everywhere, is much more marked in the United States and in England than in any other country... The more we reflect upon all that occurs in the United States, the more we shall find that the lawyers, as a body, form the most powerful, if not the only counterpoise to the democratic element of the constitution... The lawyers secretly oppose their aristocratic instincts to the democratic instincts of the people. They oppose their superstitious attachment to what is old to the people’s love of novelty, their narrow views to the people’s immense designs, their respect for due forms of decision-making to the people’s contempt for rules, and their dilatory ways to the people’s impatience... There is scarcely any political question in the United States that does not ultimately resolve itself into a judicial question.”
In a spectrum extending from France at one extreme to the United States at the other, where does Britain stand at the dawn of the twenty-first century?
De Tocqueville thought that English common lawyers shared the aristocratic suspicion of democracy which he attributed to their American cousins. He was almost certainly wrong about this in his own day, but he is at least arguably right today. There unquestionably is a natural tension between democracy and some aspects of judicial review. The issue admittedly arises only in a minority of public law cases. Most decisions on judicial review concern the application of policy to particular cases. The complainant says that the policy has not been fairly or rationally applied to him, or that it has not been applied to him at all. This sort of situation presents no particular threat to democratic values. The potential conflict arises when the challenge is to the propriety of the policy itself. These are cases where it is said to be an excess or abuse of power, or irrational, or to be inconsistent with some legitimate expectation or with rights guaranteed by the Human Rights Convention to have such a policy at all.
The old orthodoxy on this subject was expressed by the Master of the Rolls Lord Greene in an article written in 1944. “The function of the judiciary,” he said, “is to interpret and enforce law.” It was “not concerned with policy”. In particular, it was “not for the judiciary to decide what is in the public interest.” When these words were written, they were by and large true. Four decades later Lord Diplock, who contributed as much as any man to the development of English public law, neatly summarised the difference between judicial and political decision-making in his speech in R v. Inland Revenue Commissioners ex p. National Federation of Self-Employed and Small Businesses. Ministers, he said, were answerable to the courts for the lawfulness of their acts. But they were accountable exclusively to Parliament for their policies and for the efficiency with which they carried them out, and of these things Parliament was the sole judge. Like many of Lord Diplock’s more oracular pronouncements, this is not so much an answer as a restatement of the problem. Where does law end and policy begin?
Practitioners seeking a coherent answer to this question would do well to turn first to the judgment of Laws LJ in R v. Secretary of State for Education and Employment ex parte Begbie, one of the few English decisions to confront the implications for democratic legitimacy of judicial decisions on questions of policy. Mrs. Begbie claimed to have a legitimate expectation that her daughter would continue to enjoy a state-assisted place at an independent school, notwithstanding the abolition of the scheme upon the change of government in 1997. She failed for a number of reasons. One of them was that her case raised broader questions of what Laws LJ called “macro-policy”. He distinguished between cases which raised, directly or indirectly, “questions of general policy affecting the public at large or a significant section of it”, and cases affecting only the individuals concerned by some particular application of policy. The difference was that in the former category, to quash the decision on grounds other than irrationality would require the judges to “don the garb of policy-maker, which they cannot wear”; while the latter can be resolved judicially with “no offence to the claims of democratic power.” It seems to me that this is essence of the matter.
Nonetheless, it is the experience of most practitioners and many commentators that the uncertain boundary between policy-making and implementation has become more porous. The Begbie principle is never overtly rejected, but neither is it consistently applied. The tendency of the courts to intervene in the making of “macro-policy” has become more pronounced. The whole process, moreover, is unduly influenced by the degree of judicial aversion to the policy in question. The most problematical area is the broad category of public law decisions about the abuse or potential abuse of statutory powers in cases where administrative discretions are conferred in unqualified terms. The conferring of broad general powers on public authorities is often unavoidable. It is simply impractical to anticipate every possible eventuality in the drafting of primary legislation. In a famous dictum in R v. Home Secretary ex parte Simms, Lord Hoffmann observed that although the constraints on the exercise of Parliamentary sovereignty were ultimately political, not legal, the principle of legality meant that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot therefore be overridden by general or ambiguous words or, usually, without explicit provision being made for this result. This principle had in fact been applied in both public and private law cases for many years before Lord Hoffmann articulated it. I doubt whether any one would seriously quarrel with it. But it does of course beg the question what rights and principles are to be regarded as so fundamental that a power to depart from them cannot be conferred by general words. Simms itself, as the House of Lords analysed it, was about access to justice, which would probably feature in any one’s list of fundamental rights. But there has been a noticeable tendency for the range of fundamental rights and principles to expand over the years, so as to embrace some which seem a good deal less than fundamental. It has been held, for example, to include the right to fish in tidal waters, the right of political pressure groups to advertise on radio or television, and the right of litigants in person in receipt of income support to bring legal proceedings without paying court fees. Many of the decisions of the courts in this area have edged towards a concept of fundamental law trumping even Parliamentary legislation.
However, the problem is broader than this, because an analogous principle can readily be applied in cases which engage no right that is even arguably fundamental. This is because the Simms principle is in reality no more than an emphatic form of a more general principle of construction, namely that the more strange or repellent the suggested meaning of a written instrument, the less likely it is to have been intended by its authors. It is not easy for a judge to decide what is strange or repellent, except by reference to his own assessment of the merits of the policy under review. Any process of statutory construction which is not purely literal is therefore likely to start with a judicial instinct about what Parliament should be assumed to have wanted. Inevitably, the question becomes: what ought a good and wise Parliament to have wanted to achieve, and what did it need to enact in order to achieve it? The search for an ideal Parliamentary intention, to be applied in the absence of sufficient and admissible evidence of the actual one, is nominally an exercise in interpretation. But it is in reality an inherently legislative exercise. It involves a judicial assessment of the very issues that were before Parliament. In that assessment, the distinction suggested by Lord Diplock between matters of policy and efficiency within the exclusive domain of Parliament, and matters of law within the exclusive domain of the courts, tends to break down.
Let me illustrate these abstractions with a specific example. Section 1 of the Overseas Development and Co-operation Act 1980, which remained in force until 2002, empowered the Secretary of State to give financial assistance for the purpose of promoting the development or maintaining the economy of any foreign country. By no stretch of the imagination could this bland enactment be regarded as engaging any fundamental right or principle. In 1991, the Foreign Secretary, Douglas Hurd, decided to provide £316 million of development aid to Malaysia to help finance the Pergau Dam, a major hydro-electric power project on the border with Thailand. The decision gave rise to intense public controversy, partly because of opposition on ecological grounds to major dam projects, and partly because the proposed assistance was alleged to have been informally linked to the sale of British military aircraft to the Malaysian Defence Ministry. But in R. v. Foreign Secretary, ex p. World Development Movement it was attacked on a different ground, namely that the Pergau Dam project was uneconomic at the price which the contractors had quoted. There were, it was said, a number of cheaper ways of providing electricity to the Malaysian people. Indeed, the Overseas Development Agency had said as much in its advice to the Foreign Secretary. The Foreign Secretary decided to proceed in spite of this advice. His reason was that the British Government had promised the aid some years before, at a time when the price had been lower, and he considered that it would be damaging to Britain’s foreign relations to resile from a project on which the Malaysian Government had set its heart. The Divisional Court might have been expected to say that the policy justification of this particular decision was a matter for the minister, for which he was answerable to Parliament. Instead, it quashed the decision. It accepted that the Foreign Secretary had been entitled to take account of wider British economic and diplomatic interests and did not suggest that he had acted irrationally. But the Court held that this was not development aid at all. This was because, in the Court’s view, when the Act authorised assistance for the purpose of promoting the economy of foreign countries, it meant only assistance for the purpose of supporting economically sound projects, and this project was not economically sound. Lord Justice Rose, delivering the judgment of the Court, said:
“It is not in my judgment 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 language might almost have been deliberately framed as a rejection of Lord Diplock’s distinction between politics and law. In substance what the Divisional Court decided was that this particular development grant was not a good idea. They therefore interpreted the statute as limiting the power to grant development aid to projects that were a good idea. Who was to decide what was a good idea? Naturally, the Court itself. The practical effect was to transfer to the court the discretionary powers of the Secretary of State on a matter of policy and the task of assessing the project’s merits. As it happens, Parliament’s view about the merits of the Foreign Secretary’s decision was different. It subsequently approved without demur a supplementary estimate in an appropriation bill, which reallocated the available funds so as to allow the payments to Malaysia to be made anyway, along with payments for two other projects which were thought to be open to the same objections.
The real interest of this decision is that it was manifestly based on a factor whose influence is rarely acknowledged but often powerful, namely the judge’s views about the merits of the underlying policy. The courts have many tools for quashing or delaying policy decisions which they do not like, without necessarily treating them as contrary to any fundamental principle. Statutes can be interpreted, as we have seen, as authorising only that which seems to the court to be objectively wise; consultation exercises can be found inadequate to address the potential disadvantages which the court discerns in the project; the means used by the decision-maker can be found disproportionate to the what the court regards as the only legitimate objective; the list of relevant factors which the decision-maker failed to take into account may be highly sensitive to the court’s view of the potential objections; the reasons advanced for a politically controversial decision, may be found wanting and the decision accordingly irrational. In a lecture delivered in 2004, Lord Steyn observed that in dealing with applications for judicial review on the classic common law grounds, “it is an everyday occurrence for courts to consider, together with principled arguments, the balance sheet of policy advantages and disadvantages.” As a description of what happens in practice, this remarkably candid statement would probably be endorsed by every regular practitioner in the Administrative Court. It is, however, not what the judges tend to say in their judgments.
In some of these cases the presumption that Parliament cannot have intended to authorise the decision in question is distinctly artificial. There is no escaping the fact that there are issues on which the problem is not so much a lack of clarity in the expression of Parliament’s will as a radical difference between the collective instincts of the judiciary and those of politicians facing the usual electoral pressures. The fault lines can be most clearly seen in the areas of immigration, deportation and asylum. These are subjects on which electoral pressures are strong, which have generated over the years the largest single stream of applications for judicial review. Part of the problem has been that the judiciary and the executive are looking at the issue from different ends of the telescope. The judiciary’s instincts are moulded by their experience of individual cases, many of which have involved profound human tragedies to which no judge could be indifferent. By comparison, politicians, policy-makers and electors are primarily concerned by the problem viewed impersonally and en masse. But it clear that there is also a serious difference of sentiment between the political community and the judiciary. In R v. Secretary of State for Social Security ex parte Council for the Welfare of Immigrants, a majority of the Court of Appeal found it impossible to believe that Parliament could have intended to authorise the removal of all social security entitlements from asylum seekers who failed to claim asylum upon entry into the United Kingdom. They therefore quashed regulations which had that effect. Parliament evidently did not agree. It immediately passed fresh legislation authorising such regulations in terms. Some might say that this was a vindication of the proper role of the Courts. They were not prepared to allow a harsh policy to be followed by the executive on such an issue until Parliament had authorised it in unmistakable terms. But another possible conclusion is that the Court of Appeal’s view that Parliament could not have intended such a thing always was unrealistic. It ignored the political background to the legislation and underrated the level of Parliamentary concern about the effect of the UK’s relatively generous level of social provision in drawing asylum-seekers across Europe to our shores. Differences like these at one point became so intense that an attempt was made, which was ultimately abandoned, to oust by statute the courts’ powers of judicial review over certain categories of asylum decisions.
My purpose in making these points is not to express a personal view on either the decisions in these cases or the merits of the policies under review. It is simply to point out that the decisions of the courts on the abuse of discretionary powers are based, far more often than the courts have admitted, on a judgment about what it is thought right for Parliament to wish to do. Such judgments are by their nature political. By this I do not mean that the judges who decided them were politically partisan, but simply that they were dealing with matters (namely the merits of policy decisions) which in a democracy are the proper function of Parliament and of ministers answerable to Parliament and the electorate.
The incorporation of the Human Rights Convention into English law has significantly shifted the boundaries between political and legal decision-making in areas some of which raise major political issues, such as immigration, penal policy, security and policing, privacy and freedom of expression. It has also extended the scope of judicial review from ministerial and administrative decisions to primary legislation. Few Convention rights are absolute. Most of them are qualified in the Convention by reservations and exceptions on specified policy grounds, so far as these are held to be “necessary in a democratic society” or some similar phrase. Litigation founded on these rights almost always turns ultimately on the question what inroads into them are justified in the public interest. This involves a difficult balance between competing public interests, which is an inherently political exercise. By giving legal effect to the Convention, however, we have transferred it out of the political arena altogether, and into the domain of judicial decision-making where public accountability has no place.
One of the most remarkable instances in recent times of an attempt by the judiciary to transfer decision-making out of the democratic arena was the decision of the Divisional Court in 2000 in R (on the application of Alconbury Developments Ltd.) v. Secretary of State for the Environment, Transport and the Regions. The court made a declaration of incompatibility in relation to the entire scheme of English planning legislation as it had stood since the Town and Country Planning Act of 1947, on the ground that it conferred the power of decision on elected local authorities, the Planning Inspectorate or the Secretary of State, all applying planning policies laid down in general terms by the Secretary of State. In the view of the Divisional Court planning consents engaged rights of property for which the owner was entitled under Article 6 of the Convention to a judicial, not an administrative or political decision. This judgment, if it had stood, would have removed from the sphere of democratic policy-making and public accountability a class of decisions ranging from back extensions in conservation areas to major airport developments, which directly affects much of the population and arouses strong public feelings. Lord Hoffmann, concurring with the unanimous decision of the House of Lords to overrule it, put at the forefront of his reasoning the proposition that decisions about what the general interest requires are in principle to be made by democratically elected bodies or by persons who are accountable to them.
In Alconbury the availability of judicial review on the classic common law grounds was held to be enough to protect the developer’s interest in his property. But it has to be said that the general tendency of both the Strasbourg Court and the English courts has been to treat Article 6 and other provisions of the Convention as requiring the acceptability of legislation or executive policy to be determined by the Court itself, rather than by ministers subject only to a judicial review of their procedural fairness and rationality. In International Transport Roth GmbH v Secretary of State for the Home Department the Court of Appeal considered a statutory scheme designed to deter road hauliers from allowing clandestine entrants into the United Kingdom to hide in their vehicles. The scheme provided for the imposition of heavy penalties unless the carrier could show that he had an effective system in place for preventing clandestine entry and that he had no reasonable grounds to suspect that clandestine entrants were present. The majority of the Court of Appeal held that the scheme was inconsistent with Article 6 and with Article 1 of the First Protocol. They came to this conclusion after an elaborate weighing up of the pros and cons of the policy in question in order to decide whether it was really necessary or objectively fair. They rejected the view expressed in the dissenting judgment of Laws LJ that even in the context of a Convention right this was an issue on which the balance between competing policy considerations was a matter for the legislature.
The real problem about the Human Rights Convention is not the general principles stated in it, which would be accepted by almost every one. The problem is that the case-law of the Strasbourg Court has derived from them by a process of implication and extension a very large number of derivative sub-principles and rules, addressing the internal arrangements of contracting states in great detail. Many of these sub-principles and rules go well beyond what is required to vindicate the rights expressly conferred by the Convention. In addition, the Strasbourg court has taken it upon itself to decide not only whether contracting states had proper institutional safeguards for the protection of human rights, but whether it agreed with the outcome. A striking example is McCann v. United Kingdom, which arose out of the death in Gibraltar of three members of the Provisional IRA at the hands of the security forces. The Strasbourg court held that the judicial inquest in Gibraltar was a perfectly satisfactory procedure for determining whether Convention rights had been infringed. But it nevertheless upheld the complaint because it disagreed in a critical respect with the inquest’s findings. The result of this approach has been to shrink the margin of appreciation allowed to contracting states to almost nothing.
One of the most striking features of modern human rights theory is its claim to universal validity. The European Convention has been construed as attributing rights to humans simply by virtue of their humanity, irrespective of their membership of any particular legal or national community. In this spirit, the Strasbourg Court endeavours not only to interpret the Convention but to apply it in a uniform manner throughout the 47 states which subscribe to it. This approach conflicts with some very basic principles on which human societies are organised. National communities are diverse, even within a region such as Europe with a strong common identity. Their collective values are the product of their particular culture and history. Rights are necessarily claims against the claimant’s own community, and in a democracy they depend for their legitimacy on a measure of recognition by that community. A principled objection to extreme exercises of state power, such as military government, torture or imprisonment without trial is no doubt common to every state party to the Convention. But the Strasbourg Court has treated the Convention not just as a safeguard against arbitrary and despotic exercises of state power but as a template for most aspects of human life. These include many matters which are governed by no compelling moral considerations one way or the other. The problem about this is that the application of a common legal standard works breaks down when it is sought to apply it to all collective activity or political and administrative decision-making. The consensus necessary to support it at this level of detail simply does not exist.
Extremes apart, political communities may and do legitimately differ on what rights should be recognised. Even where they recognise the same rights, they frequently differ on what those rights imply or how effect should be given to them. Let me illustrate my point by reference to one of the most emotionally charged issues of the past half-century, the laws governing abortion. The United Kingdom was one of the first western countries to liberalise its abortion laws, and the resultant settlement has commanded broad consensual support ever sense. In other countries, the process has been a great deal more controversial. In Roe v. Wade in 1973, the United States Supreme Court decided that the constitutional right of privacy under the due process clause of the Fourteenth Amendment implied the right of any woman to terminate her pregnancy up to the point at which the child was viable outside the womb, possibly as late as seven months. The decision remains intensely controversial to this day, and polls suggest that it is rejected by at least a third of Americans. But it established in the United States one of the most liberal abortion regimes in the western world. In 1988, the Supreme Court of Canada came close to the same model. It held in R. v. Morgentaler that a federal statute regulating abortion violated the right of women to personal security under the Canadian Charter of Rights and Freedoms, because (among other reasons) it required that one of a number of permissible grounds for abortion should be certified by a medical committee at a designated hospital. The Court left open the possibility of a somewhat greater degree of statutory regulation than Roe v. Wade had done, but attempts to pass such legislation have so far been unsuccessful. In 1975, two years after Roe v. Wade, the German Constitutional Court reviewed the history of the issue in Germany as well as recent changes to the law in Britain and the United States, and concluded that the right to life and to respect for human dignity guaranteed by the Basic Law of the Federal Republic required the criminalisation of all abortion in the absence of compelling medical grounds. More recently, in 1992, the Constitutional Court has modified its earlier position by holding that abortion in the absence of compelling medical grounds, although illegal, should not be subject to criminal sanctions. In Ireland, the combined effect of the Constitution, Parliamentary legislation, judicial decisions and three referenda is that abortion is available only in cases where the life of the mother would be endangered by the continuation of her pregnancy to term. Should we be dismayed that such differences of opinion are possible? I think not. In all of these cases, the issue turned mainly on the relative weight to be attached to the rights of the mother and those of the unborn child. This is a profound moral dilemma, involving the evaluation of competing public policies. It is a question which on which the collective values of even the most liberal and civilised societies can legitimately differ. Moreover, it may in some countries be affected by purely national considerations which are nevertheless of great importance. In Germany, for example, the background to the 1992 decision of the Constitutional Court was the intractable political and social problem arising from the absorption of the former East Germany, where abortion had previously been permitted more or less on demand. These cases are reminders of the complexity of the issues with which human rights law is concerned and of its extreme sensitivity to differences of political and moral culture. They also underline one of the great unspoken problems about human rights law, which is that very many human rights issues are in reality not issues between the state and its citizens. They are issues between different groups of citizens, whose resolution by democratic processes will not necessarily lead to the same answer everywhere. Yet in the course of its admittedly obscure judgment in A, B and C v. Ireland the Grand Chamber of the European Court of Human Rights appears to have thought that because the great majority of European states have since the 1970s given qualified primacy to the health and wellbeing of the mother over the interests of the unborn child, it was not necessarily open to Ireland to take a different view. It is clear from this judgment, so far as anything is, that if the Strasbourg Court had found a European consensus about when life can be said to begin, they would have declared abortion in the interest of the health and well-being of the mother to be a human right and imposed it on Ireland. As it was, the only reason why Ireland’s highly restrictive abortion laws were judged compatible with the Convention was that they did not prevent Irish women from travelling to England for an abortion.
Even where the case for recognising a Europe-wide human right is strong, the varying political and constitutional arrangements of different countries will mean that the same rights and the same derogations are not equally necessary or desirable in all places, and will not always require the same measures to make them effective. There is no reason why the protection of Convention rights should necessarily require the same measures in a country like the United Kingdom, which has for many years enjoyed a strong tradition of public service, a high degree of participation in public life, functioning democratic institutions and an independent judiciary, as they do in countries like, say, Romania, Russia or Turkey.
Sir William Wade once described the case-law of the 1940s and 1950s on the judicial control of governmental acts as a ‘dreary catalogue of abdication and error’. His object was to point up the contrast with the age of judicial activism which followed. There clearly was a weather change in the 1960s, and it is, I think, worth asking why it should have happened just then. The traditional explanation, which will be found in Wade’s book as well as in other standard textbooks, is that it was provoked by the rapid expansion in the powers of the executive. I do not myself think that this is a sufficient explanation. The powers of the executive have been expanding for more than two centuries, and the implications have always been well understood. Chief Justice Hewart’s celebrated book, The New Despotism, was published in 1929. The real reason for the growing significance of judicial review since the 1960s seems to me to have been, not the growing power of the executive, but the declining public reputation of Parliament and a diminishing respect for the political process generally. The classic Diceyan analysis of the sovereignty of Parliament, according to which power filtered up from the people through their representatives in the House of Commons to determine the policies and fortunes of ministers, held the field for many years. But over the past half-century its influence has declined, and in the process the political significance of judicial review has increased. There is a widespread perception that Parliament is no longer capable of holding ministers or officials to account, because party discipline enables ministers with a majority in the House of Commons to control it. Characteristically, it was Lord Steyn who voiced publicly a concern which other judges have left unspoken. His speech in Jackson v Attorney General, opens with a robust declaration that
the power of a government with a large majority in the House of Commons is redoubtable. That has been the pattern for almost 25 years. In 1979, 1983 and 1987 Conservative Governments were elected respectively with majorities of 43, 144 and 100. In 1997, 2001 and 2005 New Labour was elected with majorities of respectively 177, 165 and 67. As Lord Hailsham of St Marylebone explained in The Dilemma of Democracy, the dominance of a government elected with a large majority over Parliament has progressively become greater. This process has continued and strengthened inexorably since Lord Hailsham warned of its dangers in 1978.
I cannot be the only person who feels uncomfortable about the implicit suggestion that it is the function of the judiciary to correct the outcome of general elections. But Lord Steyn’s statement also seems to me to reflect a rather short historical perspective and a fundamental misunderstanding of the political process. For the past three hundred years, a dependable majority in Parliament has been a condition of any ministry’s right to hold office. Ministers have controlled the House of Commons ever since the administration of Sir Robert Walpole in the early eighteenth century. Far from increasing inexorably over the past generation, as Lord Steyn suggested, the degree of ministerial control over the House of Commons has if anything declined in recent years. Departmental committees of the House of Commons have proved to be a moderately effective method of holding ministers and public officials to account, and a highly effective method of exposing their inadequacies to politically damaging publicity. Even on the floor of the House, where proceedings are naturally more partisan, MPs have defied the party whip more often and in greater numbers in the last two decades than at any time since the war. Individual ministers are vulnerable to Parliamentary sentiment, however large the government’s majority, as we have discovered within the last month. In 1979, the government of Mr. Callaghan lost a vote of confidence in the House of Commons for the first time since 1924. Studies of Parliamentary behaviour, such as those of Professor Cowley, show that today’s MPs are far more fractious than their predecessors. The House of Commons was in fact at its most docile and compliant in the face of the whips in the 1950s and early 1960s, interestingly enough the very period when, according to Sir William Wade, the judges were at their most docile and compliant in the face of ministers. The accountability of ministers to Parliament has clearly varied in its intensity and has always been imperfect. But it is wrong to dismiss it as nominal or insignificant, or as falling below some earlier ideal, or as warranting in itself a higher degree of accountability to the courts.
Nor is it true that party discipline undermines the democratic credentials of Parliament. Political parties are machines for winning elections. Their power over their MPs depends on the perceived need for a candidate to have party endorsement at the polls. This in turn reflects the long-standing propensity of most voters to choose parties rather than individuals. But political parties, although generally sharing a common political outlook, are unruly coalitions between shifting factions. They have always mutated in response to changes in public sentiment, in the interest of winning elections. The last two decades in particular have seen major changes in the tone and principles of both major parties. In this way, modern political parties have proved to be an effective means of mediating between those in power and the public from which they derive their legitimacy. They are essentially instruments of compromise between a sufficiently wide range of opinion to enable a programme to be laid before the electorate with some prospect of being accepted. Political decision-making is often characterised by a measure of opacity, fudge, or even irrationality. This is not because politicians are intellectually dishonest, but because opacity, fudge, and irrationality are often valuable tools of compromise, enabling divergent views and interests to be accommodated. The result may be intellectually impure, but it is on the whole in the public interest. By comparison law, with its transparency, its analytical consistency, and its absoluteness, is a poor instrument for achieving accommodation between the opposing interests and sentiments of the population at large.
None of this is intended to suggest that Parliamentary accountability is enough, or that judicial review is unnecessary. What it is intended to suggest is that Parliamentary scrutiny is generally perfectly adequate for the purpose of protecting the public interest in the area of policy-making. It is also the only way of doing so that carries any democratic legitimacy. In any judicial review of government policy, different groups will of course applaud or denounce the actual result, depending on what they think about the policy in question. To single issue pressure groups, public law is politics by other means. To members of the public who are hung up about dams, development policy or the arms trade, decisions like the one in the Pergau Dam case are admired because they appear to introduce a higher morality into public decision-making, untrammelled by the impurities of the political process. The attraction of judicial decision-making is that it is animated by a combination of abstract reasoning and moral value-judgment, and the decision imposed by the judiciary’s plenitude of power to declare and enforce law. To some, this will seem more straightforward than the messy compromises required to build a political consensus. However, for those who are concerned with the proper functioning of our democratic institutions, the judicial resolution of inherently political issues is difficult to defend. It has no legitimate basis in public consent, because judges are quite rightly not accountable to the public for their decisions.
The corollary is that if it is perceived that judges are in fact reviewing the merits of legislation or executive policy, there will be strong and continuing pressure for some kind of democratic input into their selection, either directly by way of legislative confirmation of their appointment, or indirectly by conferring on the executive a greater measure of influence in the appointments process than they have now. The judiciary cannot realistically expect to participate in the process of political decision-making in a democratic constitution, while remaining immune from any kind of democratic influence over their selection. Personally, I think that this would be a very unfortunate outcome. Political input into the selection of judges would not make them more accountable for what they did after their appointment. It would merely politicise the bench, as it has done in the United States. In the process, it would undermine the reputation and perceived independence of the judiciary. This would be a high price to pay for measures that would actually contribute very little to reducing the democratic deficit. We would do better to sort out the law which judges administer.
This will not be easy, because it is genuinely difficult to separate the determination of a policy’s lawfulness from an assessment of its merits. It requires a large measure of restraint that can only come from the judges themselves. The traditional word is ‘deference’ which, as others have pointed out, has unfortunate overtones of forelock-tugging cravenness. But it is a perfectly acceptable word, so long as one remembers that the judge is not deferring to the minister. He is deferring to the constitutional separation of powers which has made the minister the decision-maker, and not him. The courts already, by and large, observe this convention in certain areas of policy-making. The classic examples are decisions on foreign affairs and national security. Similarly, the courts have sought to avoid imposing on the executive duties which have significant budgetary implications, since this would impinge upon the Parliamentary monopoly of supply and appropriation. In Countryside Alliance v Attorney General, Lord Bingham proposed that a large discretion should be allowed to a national legislature enacting laws on essentially moral grounds, even in the context of the Human Rights Convention. Rejecting a challenge to the Hunting Act 2004, he observed that “the democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament.” Recently, Lord Hope, delivering the leading judgment in the Supreme Court in AXA General Insurance Ltd. v. The Lord Advocate, applied this dictum to legislation of the Scottish Parliament about liability for industrial pollution, referring to 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.”
It has sometimes been said that the Court’s reticence in these particular areas of policy-making is attributable to a lack of justiciable standards by which to assess them, or to the limitations of the court’s expertise, or to the indirect impact which an adverse decision may have on interests not represented before the court. There is something in these points, but the problem about all of them is that they tend to reduce to the level of a practical impediment what is actually an important issue of principle. In those areas of policy-making where the courts have traditionally been reticent about interfering, much the most compelling reason for their reticence is that by long-standing constitutional convention they fall within the special domain of the executive or the legislature. In the interests of democratic accountability, there must be a case for generalising this approach across the whole range of governmental activity, where the real issue is the appropriateness of the policy choices made by a different branch of the state. It is neither coherent nor satisfactory for the courts to identify a number of special areas where angels should fear to tread, rather than identifying the underlying principle and applying it generally.
The usual answer to this is that the judges are only doing what Parliament has required them to do. This is of course true in cases governed by the Human Rights Convention. Parliament has required judges to apply the Convention and to do it with due regard to the decisions of the Strasbourg Court. It is less obviously true in cases which turn on common law principles of judicial review, where Parliamentary authority is at best implicit and at worst non-existent. But I am not sure that Parliamentary authority is really a good enough answer in either category. Parliament may do many things which undermine the democratic element of our constitution. It would be foolish to pretend it is not undermined, simply because Parliament has ordained it. Parliament could, for example, lawfully suspend an imminent general election, as it did in 1940. It could in theory confer power on a dictator, as the French National Assembly did in the same year. It may cede part of its constitutional function of representing the democratic will, by providing for some kinds of policy decision to be made by bodies which are not accountable to it, as it did in 1972 in favour of the institutions of the European Union. The difference between the treaties constituting the European Union and the Human Rights Convention is that one can properly speak of the European Union as a pooling of sovereignty in relation to certain matters, in much the same way as the Act of Union with Scotland was a pooling of sovereignty in relation to everything. By comparison our adherence to a Convention whose meaning is highly elastic and dependent on policy formulated by a supra-national judicial tribunal, is not in any meaningful sense a pooling of sovereignty. It may or may not be a good idea. But there is no point in denying that it removes important areas of policy from the domain of democratic accountability, whether at national or supra-national level.
In a democracy with an uncodified constitution, there is much that depends not on law, but on a broader concept of legitimacy. This involves an instinctive assessment of the limits beyond which law cannot expect to carry moral authority in the face of broadly accepted conventions about public decision-making. Public law ought in principle to respect the conventional limitations on judicial action, because they are critical to the functioning of a democratic state. The problem in cases governed by common law principles of judicial review is that they do not do it on a sufficiently principled or consistent basis. The problem in cases governed by the Human Rights Convention, is that the Courts are frequently precluded from respecting the proper function of Parliament as a representative body and of ministers as officers answerable to Parliament and the electorate. The reduced role in our constitution of public accountability for questions of policy is just as problematic whether the judges who give effect to it act voluntarily or involuntarily.
English judges have traditionally been shy about resorting to large constitutional theories to explain their judgments. This is consistent with the pragmatic and undemonstrative traditions of English law, and its distaste for rhetoric and all-embracing propositions. However, the reticence of English judges about the constitutional implications of their decisions has had unfortunate consequences. It has meant that English public law has not developed a coherent or principled basis for distinguishing between those questions which are properly a matter for decision by politicians answerable to Parliament and the electorate, and those which are properly for decision by the courts. It has meant that over a period of time judicial decisions have brought about significant constitutional changes, which were not necessarily noticed or intended by their authors. It has also meant that the wider constitutional issues arising from judicial decisions, because they are not publicly acknowledged, are not matters of public debate. There is surely a case for saying that constitutional change, where it occurs, should happen on purpose and after proper national debate about its wider implications. It should not come about by accident and without any acknowledgment that it is happening at all.
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