On the rule of law
(1) It is essential to realise that the rule of law means different things to different people – and distinguishing between ‘substantive’ and ‘procedural’ ideals of the rule of law (a la Craig) won’t help you one little bit to realise the differences between different views of what the rule of law means. The key idea underlying the concept of the rule of law is the phrase ‘rule by law, not men’ – but that ideal plays out in different ways for different people.
(2) Some people – particularly jurisprudence specialists such as Lon Fuller and Joseph Raz – focus on the ‘rule by law’ bit of the above phrase, and ask what would have to be true of law if it were genuinely to be capable of ruling (= guiding) people’s actions. And they say that the law would have to be published, and clear, and certain, and prospective, and non-contradictory, and not make impossible demands of its subjects, and people would have to have an assurance if they obeyed the law they would not be harmed by the state. This, for them, is what the rule of law requires.
(3) But other people – particularly constitutional lawyers – focus on the ‘not by men’ bit of the above phrase, and argue that the rule of law requires that all power exercised by the state should be subject to legal constraint to ensure that it is exercised reasonably. To people who think this way, the doctrine of Parliamentary sovereignty is a standing affront to the ideal of the rule of law. The idea that Parliament is free to legislate as it pleases without any kind of legal constraint on how it may exercise that power is incompatible with these theorists’ ideal of what the rule of law entails. Similarly, the idea that the only limits on how certain public powers are exercised are unofficial ones, arising out of the fact that there exist conventions as to how those powers are to be exercised, is unpalatable to academics who adopt this second view of the rule of law – they want all public power to be subject to the hard limits of law, not the soft limits of expectation and protests when those expectations are subverted. These theorists will have been delighted by the decision in GCHQ that powers arising under the royal prerogative are subject to judicial review – thus bringing the exercise of those powers under some kind of legal control.
(4) There is a third view of what the rule of law entails, one which sees it as requiring that the law not be arbitrary in its application. On this view, we can only be said to live under the rule of law if the laws under which we live have – in Ronald Dworkin’s phrase – ‘integrity’: that they can be seen as giving effect to a unified and coherent vision of what rights and duties we have under the law. On this view, it would be incompatible with the rule of law for one area of law to strongly affirm the value of privacy, while another area of law allows people’s privacy to be trampled underfoot. A legal system of which that were true would be arbitrary and lack integrity. Instead, the judges should strain to ensure that the same values penetrate the whole of law, rendering the law a seamless web. So in interpreting a statute dealing with police powers to search people’s premises, the rule of law requires – on this third view of the ideal of the rule of law – that judges should interpret that statute in light of the values that underlie the rest of the law. And if the rest of the law affirms the importance of privacy, then judges need to interpret the statute authorising searches of people’s premises in a way that also affirms the importance of privacy.
(5) These different views have nothing to do with each other and must not be confused. On the first view of what the rule of law entails, Parliamentary sovereignty may be a good thing – as a rule which said that ‘grossly unjust enactments are legally invalid’ would render the law radically uncertain. Whereas on the second view, Parliamentary sovereignty is incompatible with the rule of law. And giving effect to the third view of the rule of law would be incompatible with the first view of what the rule of law entails – because requiring the judges to promote the integrity of law in the way they decide cases would make it radically uncertain what the outcome of a case would be, thus undermining people’s abilities to follow the law.
On Parliamentary sovereignty
(1) We almost certainly don’t have enough evidence to determine the question of whether Parliament is sovereign, even in theory. Constitutional theorists who say that Parliament is sovereign are extrapolating from a bunch of authorities that give effect to Acts of Parliament that are pretty innocuous. The fact is, we haven’t yet had any cases where the courts have shown that they regard themselves bound to give effect to statutes authorising the slaughter of all blue-eyed babies, and the like. Until we do, our data set doesn’t allow us to say whether or not Parliament is sovereign. We genuinely don’t know what would happen if Parliament tried to pass legislation authorising the slaughter of all blue-eyed babies.
(2) But we don’t have any evidence either to say that Parliament is not sovereign. The fact that the UK courts will disapply a UK statute – like the Merchant Shipping Act 1988 – if it is incompatible with EU law (as laid down in the treaties of the European Union) does not necessarily show that Parliament is no longer sovereign. If we adopt a dialogic model of sovereignty (see Po Jen Yap, ‘Defending dialogue’  Public Law 527), according to which the courts are as concerned as they ever were to give effect to Parliament’s intentions, but are much more willing now to engage in a dialogue with Parliament to determine what those intentions are, then a decision like the one in Factortame becomes easily reconcilable with the doctrine of Parliamentary sovereignty. Basically, what is happening in a case like Factortame is that the courts are saying to Parliament, ‘We’re presuming that you didn’t intend to legislate contrary to EU law, but on this occasion you screwed up and passed a statute that does violate EU law. So we’ll do you a favour and declare this legislation to be invalid, which is what we presume you want us to do. But if you did – contrary to our expectations – intend to violate EU law in passing this legislation, then just pass it again and this time say expressly that it is intended to apply even if it is inconsistent with EU law. If you do that, then we’ll give effect to the legislation.’ Support for the idea that the courts will give effect to legislation that is incompatible with EU law so long as the legislation makes it clear that it is intended to violate EU law is provided by Thoburn v Sunderland City Council.
(3) Note that the dialogic model works slightly differently with statutes that violate the European Convention on Human Rights. The courts will again approach the legislation on the assumption that Parliament did not intend to legislate contrary to the ECHR. If it’s clear to them what Parliament would have wanted the legislation to say had they been told that as it currently stands, it violates the ECHR, the courts will exercise their powers under s 3 of the HRA 1998 to re-interpret the Act to bring it into line with the ECHR and with what Parliament would have wanted the legislation to say had it realised that the legislation, as currently drafted, violated the ECHR. This is what happened in Mendoza v Ahmad Ghaidan when the courts reinterpreted the Rent Act 1977 as giving the same rights to the surviving member of a homosexual couple as it did to the surviving member of a heterosexual couple – and this was so even though s 2(2) of Schedule 1 of the 1977 Act expressly said that it applied only to ‘a person who was living with the original tenant as his or her wife or husband’. The House of Lords felt able to exercise their powers to reinterpret the legislation so as to make it also apply to homosexual couples because it was abundantly clear to them that that was how Parliament would have wanted it to be interpreted had the problem with s 2(2) as originally drafted been brought to its attention. But where it’s not clear how Parliament would want a statute that violates the ECHR to be interpreted so as to bring it into line with the ECHR, the courts cannot legitimately reinterpret it under s 3 to bring the statute in line with the ECHR – they couldn’t be sure that any interpretation they adopted would be consistent with Parliament’s intentions. In such a case, the courts won’t do what they do with legislation that offends EU law and disapply the legislation. Instead they will give effect to it, but at the same time issue a declaration of incompatibility under s 4 of the HRA, which is basically the courts telling Parliament, ‘We’re going to give effect to this legislation, but we’re putting you on notice that this legislation violates the ECHR. What do you want to do about it?’ And then it’s up to Parliament to decide whether it wants to amend the legislation to bring it into line with the ECHR.
(4) What about the dicta in Jackson v Attorney General and other cases suggesting that if Parliament were to pass a ‘ouster clause’ preventing the courts under any circumstances from judicially reviewing the actions of a particular public body (say, an immigration tribunal) then the courts might not give effect to that ouster clause? Do they establish that Parliament is not sovereign – at least so far as ouster clauses are concerned? Not really. If Parliament were to give a tribunal powers to determine immigration cases and at the same time created an ‘ouster clause’ preventing the courts from judicially reviewing the decisions of the tribunal under any circumstances, it would be basically contradicting itself. It cannot have intended, in endowing the tribunal with the power to determine immigration cases, to make those powers unlimited – thus allowing the tribunal to decide that it will only admit applicants who are good looking, or who will pay bribes to the tribunal members. But that is what it would effectively do if it prevented the courts judicially reviewing the decisions of the tribunal in any circumstances. Faced with this contradiction, all the courts can do is give effect to what they think Parliament really wants – and that would be to allow judicial review of the decisions of the tribunal, thus disapplying the ouster clause.
(5) Finally, what about the argument that Parliament is not sovereign because Parliament is bound by earlier legislation that granted independence to colonial territories? This is, again, not a real exception to the doctrine of Parliamentary sovereignty. It just illustrates the fact that power can be given away through law, but can only be taken back through force. Independence-granting legislation changes certain facts on the ground and those facts cannot be reversed by repealing the independence-granting legislation: only brute force will do. It might be thought that the European Communities Act 1972 establishes an exception to the ‘rule’ just stated. The ECA, it might be argued, gave away various law-making powers to the institutions of the then European Economic Community (now, European Union), but those powers could be recovered through repeal of the ECA: no brute force would be required. But that is because the powers surrendered by the ECA were law-making powers. As the UK remains in charge of its own courts, and its judges owe their allegiance to the UK government alone, no brute force is required to recover law-making powers that have been surrendered for a while to some external institution.
On constitutional conventions
(1) To those who argue that constitutional conventions are, or should be, legally binding, a question: Is there a constitutional convention that the judges will not give legal effect to a constitutional convention? If so, the position of those who take the view that constitutional conventions are, or should be, legally binding is self-defeating.
(2) It cannot be argued that constitutional conventions are legally binding just because they are sometimes relevant to the outcome of a legal case (such as a case on whether a government minister has committed a breach of confidence). There are lots of things that are relevant to the outcome of a legal case that don’t amount to rules of law. For example, in deciding whether it is more likely than not that A’s tort caused B’s injury, the courts will take into account the rules of probability, but the rules of probability do not thereby become rules of law. To think otherwise is to endorse what some call ‘the King Midas’ theory of law, according to which everything the courts touch turns into law.
(3) Don’t think that just because a convention is set out in a code (such as the Ministerial Code) that we can say that convention is legally binding. Pembroke College, Cambridge might issue all its students with a code of conduct at the start of the year – but that does not make it legally binding on the Pembroke students.
(4) Discussions about the legal status of constitutional conventions are only allowed to continue because of their abstractness. If we focussed on particular constitutional conventions, we would see how absurd it is to suppose that they could ever be regarded as legally binding. For example, the convention that the Prime Minister will have an audience with the Monarch once a week to report on government business. If the Prime Minister decided that he/she didn’t fancy doing that anymore, could it really be supposed that a court would compel him or her to see the Monarch, or would issue a declaration that the Prime Minister is acting unlawfully in not having a weekly audience with the Monarch. Again: what about the convention that the Prime Minister will every week expose him/herself to questions from Members of Parliament for 30 minutes? If the Prime Minister cancelled Prime Minister’s Questions, is it realistic to think that there is anything the courts could or would want to do about that?
On the basis of judicial review (JR)
(1) Elliott & Forsyth argue that if you believe Parliament is sovereign then you must think that JR of statutory bodies is ultimately based on giving effect to Parliament’s intentions that the body be subject to JR – either Parliament did not intend that the body be subject to JR or it did intend the body to be subject to JR. In the case where Parliament did not intend for the body to be subject to JR, there will be no JR – if you believe in the sovereignty of Parliament. In the case where Parliament did intend for the body to be subject to JR, there will be JR – and we don’t need any further explanation of why the body is subject to JR.
(2) Craig and Laws adopt the position which Elliott & Forsyth think is incoherent/impossible – they think that JR of public bodies is based on common law standards of good government, WHILE thinking that Parliament is sovereign.
(3) Allan agrees with Elliott & Forsyth that Craig and Laws’ position is incoherent/impossible, but with the object of pushing Craig and Laws to abandon their belief in the sovereignty of Parliament. Allan is immune from Elliott & Forsyth’s point as he believes that JR of public bodies is based on common law standards of good government, BUT does NOT think that Parliament is sovereign.
(4) I think Craig and Laws’ position is perfectly coherent – there is no reason why it is impossible to think (a) that JR of public bodies is based on common law standards of good government, and (b) that Parliament is sovereign. One simply has also to believe (c) that where upholding the sovereignty of Parliament comes into conflict with holding public bodies up to the common law standards of good government implemented through JR – as will happen when Parliament passes legislation ousting JR of a particular public body – Parliamentary sovereignty should prevail. There seems no reason why one couldn’t think this – the same standards of good government that underlie JR may also require that the courts recognise the sovereignty of Parliament, in order to ensure that the democratic will of the majority ultimately prevails.
(5) But the fact that Craig and Laws’ position is coherent does not establish that it is correct. We can test whose view is correct – Elliott and Forsyth’s or Craig and Laws’ – by asking what the reaction of the courts would be to an ouster clause. If Elliott and Forsyth’s view is correct, then the courts would have no hesitation and feel no regret at giving effect to the ouster clause – as JR of statutory bodies is based on Parliament’s intention, there is no basis for reviewing the actions of a statutory body that is protected by an ouster clause. But if Craig and Laws’ view is correct, then we would expect the courts to give effect to the ouster clause, but with profound misgivings, as doing so will involve failing to subject the statutory body in question to the common law standards of good government that the courts have good reasons to uphold – even if those reasons are overriden in this case by their stronger desire to give effect to the sovereignty of Parliament. It seems obvious that the courts would give effect to an ouster clause, but with regret and misgivings – as Craig and Laws’ view would predict, and Elliott and Forsyth’s would not.
On the separation of powers
(1) Everyone talks about the separation of powers – between the executive, legislature, and judiciary – as being a good thing, but we have reason to doubt this. First, the founders of the American constitution believed in the separation of powers as a way of making it really hard for the government to do anything. Having just fought a war of independence to free themselves from the control of a (in their eyes) tyrannical British government, the Founding Fathers were profoundly suspicious of the powers of government, and sought to divide them between different and antagonistic bodies so that it would be extremely difficult for the government to do anything. And some might say they did such a great job of this that it is now extremely difficult for the American government to do anything to solve the country’s problems over the economy, crime, and education. This is hardly a great recommendation for the separation of powers. Secondly, a true separation of powers creates the potential for the holders of those powers to exercise them arbitrarily as they cannot be held accountable to anyone else for how they exercise those powers – because if they could be held accountable, there would be no true separation of powers. So, for example, putting the power to create law in the hands of the legislature means that there are no limits on how that power can be exercised.
(2) Instead of enthusing about the separation of powers, then, we should instead explore the potential for sharing powers among different constitutional actors, so as to ensure that those powers are exercised properly and reasonably. The dialogic model of relations between Parliament and the courts (see the section on Parliamentary sovereignty above) provides the template for this idea of sharing power – with the courts and Parliament collaborating together to try to ensure that legislation does not infringe norms of human rights or EU law. Similarly, judicial review can be seen as allowing the courts and the executive to share the power of carrying out government business – with the executive taking the initiative, and the courts checking the executive where the executive goes too far, while being aware of the need to ‘defer’ to the executive’s expertise and experience in determining what counts as ‘too far’ in certain areas of sensitive government business. From this perspective, the fact that Parliament is controlled – to a large extent – by the executive (in the shape of the government) is not such a bad thing, as it allows for swift and decisive action in the face of economic crisis (contrast the British government’s rapid response to the economic crisis of 2008, nationalising some banks and bailing out others, with the American government’s, where the US economy almost collapsed because of Congress’ initial rejection of the executive’s ‘Troubled Asset Relief Program’), and allows legislation to be informed by the executive’s experience of what the public interest demands.