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Published: Fri, 02 Feb 2018
How Judges Should Develop The Common Law
The traditional UK constitutional account of Parliamentary sovereignty holds that Parliament has “the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”  Accordingly, statutes enacted by Parliament have priority over the common law, an accruing set of legal principles derived from judicial decisions. Unfortunately, this traditional account of Parliamentary sovereignty imposes substantial limitations on judges in developing the common law in relation to rights protection after the Human Rights Act 1998 (HRA). Given that Parliament has stepped in to regulate on human rights protection, judges’ role become restricted to deciphering Parliament’s intentions and interpreting the HRA accordingly. Common law development therefore becomes largely redundant. On the other hand, this traditional account of Parliamentary sovereignty has been challenged, notably by common law constitutionalists. They assert that UK is a ‘common law constitution’, within which certain rights lie beyond the reach of Parliament. Some even posit judges as the ultimate arbitrators of rights issues. Accordingly, the HRA cannot restrict judges in developing the common law. I will argue however, that both theories do not adequately explain the jurisprudence under the HRA and therefore cannot convincingly determine the role of judges in rights protection. Instead, a reorientation away from the focus on sovereignty will better reflect and explain the reality of the interplay between judges and Parliament. In this area, an especially compelling constitutional theory being developed is that of a ‘dialogue’ between judges and Parliament. By acknowledging that the HRA has not supplemented the common law, but instead facilitated a constitutional dialogue between these institutions, it recognises the complementary nature of both institutions. A partnership between judges and the legislature will likely enhance rights protection in the UK to a level unattainable should either be restricted by the sovereignty of the other. In fact, the ‘dialogue’ model is also capable of justifying the range of jurisprudence under the HRA which the other two theories cannot. Given thus, I believe judges’ role in relation to rights protection is best determined within the scope of the ‘dialogue’ model. Under this framework, judges should not be restricted from developing the common law as the common law serves as their input into the ‘dialogue’. The only valid limitation on judge’s power to develop the common law should be a self-imposed one deriving from the prudence of judges in recognising the differing institutional limitations of both institutions.
Founded upon an unwritten constitution, rights protection within UK prior to the HRA was not dependent upon legally enforceable fundamental rights. Instead, human rights was indirectly protected by the common law. Notably, there are significant overlap between rights under common law and convention rights. In enacting the HRA, Parliament had not intended to create new forms of rights. The aim had been to ‘bring rights home’ by allowing fundamental rights to be directly enforceable in UK courts. The significance of the HRA thus lies not in expanding the type of rights protected within UK but in strengthening its protection and in introducing Parliament as a major institution of rights protection, a role previously undertaken primarily by the courts. With two powerful institutions now tasked with protecting human rights, the question of whether judges should continue developing the common law inevitably arose. The proper roles of judges and Parliament in rights protection therefore have to be determined. Both proponents of Parliamentary sovereignty and common law constitutionalists share contrasting conceptions. I submit that the soundness of the differing views is best tested against the jurisprudence of the HRA to determine if the theories can provide an adequate explanation of the constitutional reality. Given that majority of the jurisprudence under the HRA relates to judicial review, much of my essay focuses on analysing the different theories within the context of judicial review. I believe judicial review also provides the ideal setting to discern the limits of judicial creativity in reality. A convincing theory, capable of reconciling the jurisprudence under the HRA is found will finally be used as the basis to uncover the role of judges in relation to rights protection.
For proponents of Parliamentary sovereignty, the determination of the role of judges in rights protection is derived largely from the ultra vires theory. Proponents of the orthodox ultra vires doctrine such as Sir William Wade postulates that judicial review can only be based on the ground that administrative action is ultra vires (beyond the powers granted by Parliament). The principles of good administration courts apply are merely judicial enforcement of legislative intention.  This conventional conception however supplies an intention to Parliament that is wholly fictional and ignores the crucial role courts have played in devising rules of good administration in judicial review. Instead, a more convincing approach, the ‘modified ultra vires’ theory has been developed by Mark Elliott. In rejection of the “fictitious direct relationship between legislative intention and judicial review which forms the focus of the orthodox ultra-vires doctrine”, Elliot proposes that “the relationship exists in indirect form”. In his theory, “in the absence of clear contrary enactment, Parliament is assumed to legislate in conformity with the Rule of Law which favours the exercise of administrative power in a fair and reasonable manner. Courts are therefore delegated interpretative functions with judges being granted a margin of freedom to set the precise limits of administrative power.” In this way, he acknowledges “the important contribution of judicial creativity within an interpretative framework based on the role of law”. Parliamentary sovereignty is thus reconciled with judicial creativity. Accordingly, judges are not constrained from developing the common law as long as legislative supremacy is accorded to Parliament.
Given that the modified ultra vires theory succeeds in addressing criticisms of artificiality while preserving Parliamentary sovereignty, it is very attractive. In fact, it appears to explain pre-HRA case law where judicial attitude to common law protection of human rights increasingly embraced the notion that the common law contained within it certain fundamental rights which only an express Parliamentary legislation can override.  However, I submit that the modified ultra vires doctrine is unconvincing post HRA given that it is incapable of explaining the jurisprudence under the HRA, especially in relation to Section 3 (s.3). Section 3 states that so far as possible to do so, legislation should be read and given effect in a way which is compatible with Convention rights.  The phrase “so far as possible” imposes a strong duty on courts to interpret statutes compatibly with convention rights. However, the limit of the interpretative power is made clear under s.4. Section 4 holds that … Clearly, it is evident from the structure of the HRA that s.3 does not allow judges to act as legislators. The doctrine is therefore incapable of justifying the line of cases where courts relied on s.3 to perform radical interpretations such that the meaning of the statute is essentially revised.
Two such prominent cases are Ghaidan v Godin-Mendoza  and R v A (No. 2). In Ghaidan, the claimant, a homosexual, requested the court to interpret the Rent Act 1977 which provided for the succession rights of surviving spouses living together as husband and wife as being inclusive of cohabiting same sex couple. The House of Lords held that there was no justification for treating same sex couples differently from heterosexual couples. Section 3(1) was used to read the Act as extending to persons living together as if they were husband or wife. Clearly, the court in effect, had amended the Rent Act 1977 by including homosexual partners into the categories of relationship which provided for survivorship rights. Similarly, in R v A, under s.41 of the Youth Justice and Criminal Evidence Act, women are prevented from being questioned during rape trial on previous sexual relationships with defendant. The defendant however countered that this section breached Article 6 of the European Convention of Human rights. The House of Lords eventually attempted an extremely strained interpretation of s. 41 by reading into it an “implied provision that evidence or questioning which is required to ensure a fair trial under Art.6 … should not be treated as inadmissible.”  This goes against the purpose of s.41. It is clear in these cases that judges have demonstrated significant disregard for statutory language and evoked interpretative powers beyond that envisaged by s.3. The statutes in question were essentially revised. This is an aspect that even the modified ultra vires theory cannot allow for. A fundamental restriction of court’s power remains under the doctrine. The restriction is that “any irreconcilable conflict between the intention of Parliament and the rule of law must ultimately be resolved in favour of the former, and judicial decisions which fail to respect this axiom must be rejected as lacking constitutional legitimacy.”  According to this view, judges remain ‘faithful agents of the legislative will”, and are certainly barred from interpreting the legislation in a manner such that its meaning is altered. Given that the modified ultra vires theory is incapable of making allowance for the jurisprudential reality under the HRA, it does not provide a viable basis for understanding the proper role of judges’ in relation to rights protection.
Furthermore, another prominent feature of the jurisprudence under s.3 is the inconsistent jurisprudence. While cases such as Ghaidan and R v A seem to indicate an extremely activist court, other cases such as Bellinger v Bellinger  and Poplar Housing and Regeneration Community Association Ltd and Secretary of State for the Environment v Donoghue  paint a picture of a more cautious judiciary. In Bellinger, the claimant, a male to female post-operative transsexual petitioned for her marriage to be declared valid despite s. 11(c) of the Matrimonal Causes Act 1973 which declared that a marriage shall be void if parties are not male and female respectively. It was established in case law that gender in relation to validity of marriage was determined at birth. Against this background and in contrast to Ghaidan, the House of Lords refused to give s.11(c) the extended meaning argued for by claimant despite it being perfectly feasible. In Popular, Lord Woolf set out indications as to the proper interpretation of s.3. He noted that “the most difficult task which courts face is distinguishing between legislation and interpretation … if it is necessary in order to obtain compliance to radically alter the effect of the legislation this will be an indication that more than interpretation is involved.”  In this case the court refused to read into section 21(4) of the Housing Act 1988 that the housing association can only issue summon for possession “if it is reasonable to do so”. This interpretation appears modest but was rejected by courts and seen as a form of legislating. Clearly, such seemingly irreconcilable jurisprudence reflects that the line between interpretation and amendment is extremely blurred. This is an aspect that renders the modified ultra vires theory unhelpful. After all, according to the modified ultra vires theory, Interpretation must be distinguished from amendment. This is however virtually impossible in reality as the dividing line is subjective and often varies between individual judges. In fact, as noted by Allen, “repeated declarations that permissible ‘interpretation’ must be distinguished from unauthorized ‘legislation’ are little more than empty rhetoric; for these are ultimately labels to be attached to interpretative conclusions that one approves or disapproves”.  Clearly, the fact that interpretation cannot be clearly distinguished from amendment is a feature that renders the theory of ultra vires difficult to apply in reality. This deals a further blow on the soundness of the ultra vires theory.
Also, the modified ultra vires theory rests on the presumption of Parliamentary sovereignty. Unfortunately, Parliamentary sovereignty is itself highly debatable. Proponents of Parliamentary sovereignty have attempted to rely on the HRA itself as indication Parliamentary sovereignty. Indeed, the HRA preserves Parliamentary sovereignty at least in form. After all, Parliament retains the power to pass even statutes that are incompatible with convention rights. Courts are limited simply to evoking a declaration of incompatibility. As noted earlier, this is not an accurate reflection of jurisprudence under the HRA as the judiciary has at times engaged in interpretations that revise meanings of legislations. Already therefore, the claim that HRA preserves Parliamentary sovereignty is dubious. However, even if we accept that Acts of Parliament are supreme to the common law, there remain significant political constraints limiting powers of Parliament. While Parliament can enforce legislations incompatible with convention rights, with courts accordingly making a declaration of incompatibility, a defendant affected by the legislation would likely bring his case to Strasbourg where a breach would be found. Parliament would then be forced to amend the legislation. In reality, inroads have thus been made to Parliamentary sovereignty. Parliament can no longer make or unmake any laws as it chooses to. Accordingly, Parliamentary sovereignty remains the UK constitutional norm only in form and not in substance. Given that the very constitutional basis the modified ultra vires theory is dependent upon is shaky, the ultra vires theory is therefore unable to provide a convincing justification of the role of judges. In fact, Parliamentary sovereignty is itself a seemingly unpersuasive doctrine to pin UK constitutional analysis upon. Given thus, the role of judges in rights protection is better left to be determined by alternative constitutional theories.
Common law constitutionalism stands as the most popular alternative. Under this doctrine, the ultra vires principle is rejected and theorists advance a ‘common law’ model of judicial review. They assert that the rights under the HRA need to be understood against the background of a ‘common law constitution’ within which certain rights lie beyond the reach of Parliament. Prominent advocates of this theory include Sir John Laws and TRS Allan. The most extreme account is posited by Sir John Laws who views courts as the primary guardian of society’s fundamental values. According to Laws, the common law is a “higher-order law to which even Parliament is subject”.  This defence of judicial supremacy is based on the precept that courts are morally superior to Parliament in upholding the cardinal value of individual autonomy. The form of political decision making that takes place in Parliament is compared unfavourably with the form of decision making within courts. Instead, “common law adjudication is regarded as the exemplar of public reason because it is litigant driven and inherently rational, in comparison to the ‘bleak analysis’ of contemporary legislative politics.” Allan shares a common tenor with Sir John Laws in arguing for the superiority of judges in protecting a core set of constitutional value. However in his theory, it is the rule of law, imbued with substantial content such as fundamental liberties of speech that is the cardinal principle that cannot be violated. Unlike Laws however, he does not endorse complete judicial supremacy but advances a theory of shared sovereignty within a ‘Constitution of Reason’, where “judges serve the constitution … their submission to the legislative will is a reasoned and reflective one, attuned to all the circumstances.”  In this form of constitution, “there are limits to the legislative power … Parliament could hardly (without an infinitive regress) give instructions on the correct approach to its interpretative instructions. The interpretative power of the superior courts is as fundamental as Parliament’s legislative supremacy: shared sovereignty is intrinsic to constitutional government.”  Clearly, while legislative intent is neither irrelevant nor meaningless, in contrast to the ‘modified ultra vires theory’, the Rule of Law takes precedence. In fact, Allan even resolutely asserts that “no declaration of incompatibility can be given in respect of a statute that threatens the ROL, for no such statute – read as having that effect – could be acknowledged as truly law”  . The declaration of incompatibility under s.4 of the HRA has however been created precisely for such a situation in order to preserve Parliamentary sovereignty. Allan’s statement therefore effectually renders s.4 useless with no regard for Parliamentary sovereignty. Accordingly, under common law constitutionalism, judges have virtually inhabited powers in developing common law. In fact, no statute and certainly not the HRA can restrict judges since they remain the ultimate adjudicators on rights issues.
Common law constitutionalism is certainly very attractive, especially in entrenching rights protection within UK. By grounding the UK constitution on legally protected constitutional values, it ensures that rights protection in UK is not limited to the HRA. In this way, rights protection gain strong constitutional footing within UK and are not in the precarious position of becoming repealed simply on Parliament’s wimp. I submit however that such an analysis paints an overly pessimistic picture of Parliament and do not explain the jurisprudential reality under the HRA. I do not agree with common law constitutionalists’ analysis of Parliament. In fact, the jurisprudence under the HRA, notably in YL V Birmingham reflects that Parliament can be sensitive and responsive to rights protection. It fact, it can even strengthen the level of protection above that delivered by courts. In this case, the issue was if a privately-owned care home, in providing care and accommodation for residents placed with it by a local authority, was performing functions of a public nature within the meaning of s.6 of the HRA and was therefore obliged to act in compliance with convention rights. Majority of the Law Lords held that it was not as the private care home was acting in a commercial capacity when it contracted with the local authority. Furthermore it will be against equality if privately funded residents were treated differently to publicly funded ones. Only prominent public lawyers Baroness Hale and Lord Bingham dissented. Unfortunately, the majority judges failed to grasp the sensitivity of the subject matter. Care for the elderly, who form one of the most vulnerable group in society clearly requires a greater degree of rights protection by the state than ordinary commercial companies. In fact, this is an aspect that Parliament on the other hand has responded to when it enacted Section 145 under the Health and Social Care Act 2008 which reversed the effects of the decision in YL. Privately-owned care homes with publicly funded residents were to be deemed as exercising public functions. Clearly, the infallibility of judges in rights adjudication as presumed by common law constitutionalists does not stand. In fact, Parliament can and will at times enact legislations to strengthen rights protection even above the level provided by courts.
In R v A, the danger of common law constitutionalism taking root similarly becomes evident. Here, courts in an overzealous attempt at procedural rights protection, failed to correctly balance the range of human rights involved. Notably, the sensitive character of a rape prosecution in contrast to other types of prosecution was not recognised by the law lords. The case has generated significant criticism from academics. Nicol for instance criticised that “the Lordships astonishingly interpreted a statutory provision designed to reduce judicial discretion to allow evidence of the complainant’s sexual history in sexual offences trials, in such a manner as to reinstate that discretion… Far from demonstrating level-headedness they allowed their passion for their (highly contestable) conception of a fair trial to overwhelm broader societal concerns relating to the incidence of sexual assault crimes … They showed scant regard for women’s rights under Arts 3 and 8 ECHR. Adopting a distorted perception of reality through the prism of the courtroom, their idea of “truth” consisted of what was established in court in accordance with rules which, post-R. v A, are skewed against complainants… The fragility of reason is therefore not confined to Parliament: we can rely on judges no more than on legislators to exercise the dispassionate application of reason. ”  Clearly, whilst it is accepted that courts play a key role in insulating principles from Parliament and majority opinion, it does not entail that it has moral superiority over Parliament in relation to rights issues. In fact, the vigorous parliamentary process and the presence of independent committees such as the Joint Committee on Human Rights do ensure that Parliament generally respects and protects rights. The assumption under common law constitutionalism that Parliament is amoral, transient and potentially capricious  while courts are exempted from acting inimically to liberty is therefore a skewed conception of constitutional reality. On this basis, given that the moral superiority of courts which the theory is hinged upon appears fallacious, the theory is rendered unconvincing.
Furthermore, by emphasising on the moral superiority of the courts over Parliament, common law constitutionalism misleadingly pits common law against Parliament. It sends out the notion that decisions made by Parliament, being amoral, “ought generally to be treated with scepticism and, when necessary, hostility”  by the common law. This is hardly an accurate reflection of the constitutional reality. Notably, common law constitutionalism demands a form of judicial activism that judges have yet been willing to undertake. In fact, the jurisprudence under the HRA has occasionally run in the contrary direction to the approach as advocated by common law constitutionalism. There are indeed some judicial opinions that appear to be aligned within common law constitutionalism. A notable example is in the obiter of Lord Hope in Jackson v Attorney General  who noted that “parliamentary sovereignty is no longer, if it ever was absolute… The rule of law enforced by courts is the ultimate controlling factor on which our constitution is based”. However, this view does not appear to be the constitutional norm. In fact, much of the jurisprudence under the HRA reflect a less activist approach. As noted earlier, in a range of cases such as Bellinger and Popular, far from actively interpreting statues to achieve compatibility with convention rights, courts deferred to Parliament. In fact, only very recently in R v Bancoult  , it appears that courts are moving away from common law constitutionalism, showing instead an increasing lack of willingness to take an expansive view of common law rights. In this case, the right of abode was argued as a constitutional right that trumped even the Crown. Despite the right of abode being a most fundamental right, the court nevertheless held that it could not override the legislative powers of the Crown. The current position, accurately described by a senior Lord Justice of Appeal, therefore appears to be that while “judges have taken their role as guardian of human rights very seriously … they have shown no immediate inclination to indulge in extrajudicial sharpshooting or test the boundaries of their new power.”  The vigorous language of ‘higher-order law’ therefore seems to be an overstatement. Jurisprudence under the HRA clearly reflects that courts have not exercised ‘constitutional review’ in the full sense of the term, to the degree as advocated by common law constitutionalists. Given thus, common law constitutionalism does not appear to provide a convincing basis to decide the role of judges within the UK constitution in relation to rights protection.
In fact, Allan’s conception of common law constitutionalism though less radical than Laws remains unpersuasive. By attempting to accommodate both the higher order, constitutional standing of the common law with Parliamentary sovereignty, he proposes a theory of ‘shared sovereignty’. Unfortunately, the very use of the word ‘sovereignty’ with its absolutist Austinian connotations renders such an argument an oxymoron. It runs against the very essence of Parliamentary sovereignty where Parliament’s power to make or unmake any laws is absolute and cannot be constrained. Parliament sovereignty means that Parliament cannot tolerate another sovereign institution. Instead, what Allan probably wants to elucidate through his theory is the “division of powers, functions or responsibilities between different branches of government”.  I submit however that this is a view better elucidated within a constitutional framework hinging upon ‘dialogue’ between the courts and Parliament on the nature and extent of human rights protection within UK. By “reorientat(ing) UK constitutional theory away from obsolete debates about Parliamentary sovereignty“  , we need not be constrained with having to strain interpretations of the theories such that they are able to accommodate the jurisprudential reality.
The ‘dialogue’ theory has been gaining increasing prominence in constitutional analysis. Notable academics supportive of this theory includes Richard Clayton and Tom R. Hickman. Inspired by Canadian constitutional analysis, Clayton proposes a starting point of ‘democratic dialogue’ in understanding the UK post-HRA constitution. This theory advocates that when a judicial decision is open to reversal, modification or avoidance, the relationship between court and the legislative body is that of a dialogue. When judicial decisions cause a public debate, the legislative body is in a position to “devise a response which is properly respectful of the human rights issues that have been identified by the court, but which accomplish the social or economic objectives that the judicial decision has impeded.”  Clayton notes that the principle of dialogue’ is implicit in the structural features of the HRA. In particular, the opportunity for dialogue between the courts and the legislature arises under s.4. When courts unable to construe legislation compatibly with Convention rights make a declaration of incompatibility, Parliament is forced to respond, usually by making remedial orders. The ongoing ‘dialogue’ therefore involves input from both institutions at different junctures. Examples include R. (on the application of H) v North and East London Mental Health Review Tribunal where Parliament responded to a declaration of incompatibility by making remedial order to amend the Mental Health Act. Similarly, in R. (on the application of Anderson) v Secretary of State for the Home Department)  , following the declaration of incompatibility given for allowing the Secretary of State to alter the minimum sentence period for life imprisonment, the Criminal Justice Act 2003 was enacted which changes the Home Secretary’s role in setting the tariff. 
Hickman expands on this theory by advocating a ‘strong form’ dialogue theory. He recognises that dialogue is at the heart of the HRA. However, it does not centre simply upon the structure of the HRA. The theory is underpinned by “a belief that the courts have a vital constitutional role in protecting fundamental principles from the sway of popular sentiment. They do not simply have a subordinate or formal task, but must capture and insulate the enduring long-term values and principles of the community. However, their function is not simply to exert these principles on the community, but rather to work in collaboration with the other branches in evolving them and in fostering their acceptance. They must advance together towards principled goals and in so doing each branch must exhibit the capacity to compromise and to accommodate the needs of expediency. Such a view rejects a rigid parcelling of policy to the executives and legislatures and principle to courts, and emphasises a degree of overlap and exchange.”  This is certainly a more sophisticated dialogue theory than the one proposed by Clayton. Notably, it recognises both the representative character of Parliament
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