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Published: Fri, 02 Feb 2018
The absence of judicial authority
Discuss the extent to which “The absence of judicial authority to misapply primary legislation that is contrary to Rule of Law does not mean that the Rule of Law has no influence on the content of legislation”
Jowell’s statement concerning the constitutional status of the Rule of Law raises three central issues in British constitutional theory. An assessment of the statement requires, first, some clarity about what the Rule of Law is understood to be: what grounds it, and what it requires. Following from that, the statement raises the question of how the principle of Parliamentary sovereignty can be coherently squared with the implicitly moderating constraints of the Rule of Law. Finally, and connectedly, Jowell’s statement calls for some analysis of the constitutional relationship between the judiciary and the Crown in Parliament. There are arguments that question the absolute nature of the principle that there is an “absence of judicial authority to misapply primary legislation that is contrary to the Rule of law”. It will be instructive to begin with a brief account of the theoretical context of these issues.
The tensions surrounding these questions arise primarily from two principles of the British constitution: the sovereignty of Parliament, and the Rule of Law. A.V. Dicey defined Parliamentary sovereignty as “The principle…that [the Crown in] Parliament …has, under the English constitution, 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”. The Rule of Law, on the other hand, is understood by Dicey to encapsulate “at least three distinct, though [related ideas]”. First off, it asserts the notion that the power of officials, particularly discretionary powers, cannot be exercised arbitrarily. Secondly, the Rule of Law denotes the legal equality of all persons; “no [person] is above the law” and all persons are subject to it. In the third place, Dicey identifies, as part of the concept, the active participation of the judiciary in determining what the law is and, indeed, in creating it.
Dicey’s interpretations are not uncontroversial. This is particularly true with regard to his formulation of the Rule of Law, which has been convincingly criticised by later commentators such as William Robson and Professor Ivor Jennings, among others. Broadly speaking, they attack his understandings of how the chief constitutional entities interact, and the extent of their powers and jurisdictions. Even so, Dicey’s critics do not altogether dismiss the relevance of Rule of Law in the British constitution, but generally question what the concept requires. As such, Dicey’s critics will not be addressed in any detail, here. What is important is that his observations frame the analysis of the questions raised by Jowell’s statement, and provide a starting point for understanding their importance.
Of those questions, the essential one is what constraints, if any, exist on the Executive in Parliament? The question cannot be answered without a view on what grounds the Rule of Law. In the first place the concept may be thought of as grounded in the legal traditions of common law. On this view, the law as a body of norms and rules, has prior existence by virtue of precedent and convention. This partly implies a judicial competence to determine the soundness of primary legislation to a greater or lesser extent, on the basis of common law. A problem with such a view is the circularity in the logic that the behaviour of the judiciary is both informed by, and expresses, the Rule of Law. Moreover, it is, on the face of it, repugnant to the principle of Parliamentary sovereignty, which the court in Jackson acknowledges to be the primary principle of the British constitutional order, even while criticising the idea that the Executive is entirely unbound by the Rule of Law.
Even so, there is a suggestion that the Executive in Parliament accepts itself to be, in some sense, constrained (or at least guided) by the concept. This is evidenced by the Constitutional Reform Act 2005 s. 1(a), which acknowledges an “existing constitutional principle of the rule of law…”. The Act moreover gives formal recognition to the independence of the judiciary, and includes, in s. 17, a duty for the Lord Chancellor to defend that independence and respect the rule of law. The implication is that Parliament considers the Rule of Law to be outside its inherent jurisdiction; it is a constitutional tertium quid lying between the judiciary and the Executive, yet constraining both. As such, the Rule of Law is not wholly grounded either in positive law, or precedent and legal tradition.
Given this, the third, and better, way in which we might understand the concept’s nature is to conceive of the Rule of Law as being ultimately grounded in politico-moral extra-legal ideals. More stringently put, the suggestion is that the Rule of Law embodies a peculiar morality of law, or, indeed, understands law as being a moral idea. On that conception, Lord Bingham’s summary of the principle is illuminating. For him, the essence of the concept is that “all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”.
Unpacking this view yields a number of ‘values’ that underpin the concept. In agreement with Jowell, these can minimally be said to include: legality, certainty, accountability, efficiency, due process and access to justice. Importantly, Bingham makes further elucidation of what these values might require in constitutional practice. Of the eight principles (or ‘sub-rules’) he identifies, four, in particular, shed additional light on its requirements. They are: that the law be “intelligible, clear and predictable”; that issues of legal right and liability be ordinarily resolved by application of existing law, and not discretion; that it affords “adequate protection of fundamental human rights”; and that public officials exercise their powers reasonably, reflecting the purposes of their conferral. On this view, the Rule of Law equates to the demands of natural justice. Returning to the primary questions at issue, it will now be worth considering how these notions interact with Parliamentary sovereignty and Executive power on the one hand, and the judiciary’s remit, on the other.
The essential tension between Parliamentary sovereignty and the Rule of Law, is whether Parliament can legislate contrary to the Rule of Law. The answer to this perhaps depends partly on what value within the Rule of Law has been trespassed upon. For example, Parliament has, historically, made use of retrospective legislation, offending the requirement that law be prospective. This was the case with the War Damage Act 1965, enacted to frustrate the House of Lords’ judgment in Burmah Oil Company Ltd. v Lord Advocate. Aside from exempting the Crown from liability retrospectively, that case also demonstrates how Parliament may act to decisively usurp the jurisdiction of the courts to determine certain matters according to first principles of common law and, indeed, natural justice. Importantly, that case did not involve a threat to fundamental individual rights, or Executive overreaching.
As demonstrated in Anisminic Ltd. v Foreign Compensation Commission, the courts have shown themselves far less willing to tolerate executive actions that offend the legality aspect of Rule of Law. In that case two issues of particular importance were raised, concerning the Rule of Law. First off, it showed that the courts could, and would consider an error of law by the Executive to be ultra vires. Secondly, it demonstrated the jealousy with which the courts assert their jurisdiction of judicial review, and their reluctance to relinquish it unless it is expressly excluded. Even so, the tension that exists regarding that jurisdiction is evidenced by the government’s attempt, in 2004, to expressly exclude judicial review of decisions made by the Asylum and Immigration Tribunal, when drafting what is now the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. The suggestion caused such opprobrium that it was dropped. The issue nevertheless provoked the question of when, and whether, the judiciary will misapply primary legislation.
There is an argument to be made that any serious attempt by Parliament to violate the Rule of Law, may so provoke the courts that, though they might not go so far as to misapply it, they will not enforce it. In purely legal terms, they may have two avenues by which to do so. First off, they may do so by finding an interpretation of such legislation that presumes a harmony with existing principles of common law. An example of this is found in Liversidge v Anderson – a case that demonstrates, well, the tensions between the judiciary and Executive. Among the issues in that case, was the matter of determining the standard by which the Home Secretary might be said to be exercising emergency powers of detention ‘reasonably’. Lord Atkin’s dissent expressed a preference for interpreting the Regulations with a bias towards common law principles, over Executive intention, when there was a serious conflict between them. Moreover, and especially in recent decades, the courts may appeal to the Human Rights Act 1998, and the jurisprudence of the European Union’s judicial order, and interpret such legislation in line with them. In the second place, the Courts may invoke the United Kingdom’s human rights obligations under international law e.g. The European Convention on Human Rights and other treaty obligations. In a sense, this is an application of the principle of legality in that Parliament is presumed to not deliberately contradict its own commitments.
The senior courts might, alternatively, misapply such legislation by a third way, relying on the argument that the sovereignty of Parliament is in fact a convention, or rule addressed to the courts, and not an absolute principle of the British constitution. As noted already, that suggestion is made strongly in obiter statements in Liversidge, Anisminic and Jackson. However, in practice, the courts have tended to defer to the Executive in the final analysis, albeit occasionally with such extreme censure as to bring about voluntary amendments to the offending legislation. It is nevertheless interesting to consider whether the Executive moderates such controversial legislation out of sincere deference to the Rule of Law, or in order to avoid risking a situation where the courts positively pronounce a limit on what Parliament can enact in primary legislation. This leads to the suggestion that the Rule of Law is quite significantly a complex of compromises over the exercise of key constitutional competencies by the chief organs of the British constitutional order.
The Rule of Law is a tensely contested concept. It is a paradox in that, although Parliament has the right to legislate on all matters, it is the courts that determine what the rule of law requires. Each organ possesses a certain ascendancy over the other: Parliament may expressly ouster the judiciary’s jurisdiction through legislation, but risks a constitutional crisis should it wield that power too freely. As Lord Goldsmith acknowledges, the responsibility to uphold the Rule of Law, rests on both institutions.
Given the tensions and compromises that the concept brings about between the Executive and judiciary, the Rule of Law is perhaps best understood as a moderating constitutional consensus that acts as a tacitly-agreed, and mutually accepted, constraint on both. Yet, that commitment itself can be said to arise from an understanding of the British legal tradition as being framed in the ideals of natural justice; a settlement that not only reflects those ideals, but is informed by them, too. In practice, that compromise gives priority to judicial independence, balanced with a presumption of extensive residual rights among private and public persons. Indeed, in modern times it is perhaps best understood in the language of rights. They are arguably the sinews in the concept of the Rule of Law.
Dicey A V, Introduction to the Study of the Law of the Constitution (first published 1885, 8th edn, Macmillan 1915).
- Provided some historical and theoretical context for the debates that Jowell picks up on.
- Used mainly to become acquainted, at source, with Dicey’s understanding of rule of law and parliamentary sovereignty, making for more informed comparison with critics and own analysis.
Elliot M and Thomas R, Public Law (2nd edn, OUP 2014).
- Useful in considering how far judges are willing to go if they consider some Act of Parliament or the executive to be fundamentally unconstitutional.
- Substantiates the idea, also suggested in the case law, that the sovereignty of Parliament might be seen as a rule addressed to the court, and a compromise, rather than an absolute rule.
Jowell J and Oliver D, The Changing Constitution (7th edn, OUP 2011).
- The main text to begin considering the nature of the rule of law, and why it is so contentious.
- Footnotes provides guidance for further reading and helped to identify most important primary sources.
Bingham T, ‘The Rule of Law’ CLJ 66 (2007) 65.
- Fleshed out the practical requirements of an otherwise abstract concept, and gave the added benefit of considering the views of a senior judge speaking out of court.
- It provided insights regarding the compromises and tensions that the judiciary and executive must negotiate, quite frequently, while also suggesting that the relationship, though tense, is not inherently antagonistic.
Le Seuer A, ‘Three Strikes and it’s Out?’  PL 225.
- This source provoked thought on the question of whether the executive defers to judicial opinion out of sincere respect for the rule of law, or for fear of undermining the constitutional settlement by stretching its limits too far.
Anisminic Ltd. v Foreign Compensation Commission  2 AC 147 [HL].
- Demonstrated the jealousy with which the courts will assert their jurisdiction of judicial review, and willingness to rule acts carried out in error of law, ultra vires, thus demonstrating at least one definite area in which the executive may be constrained by the rule of law.
Burmah Oil Company Ltd. v Lord Advocate  AC 75.
- Highlights the limits of natural justice as an inherent aspect of role of law, and affirms the ultimate supremacy of parliament.
- Raises the question of whether the courts are willing to construe and carry out some areas of policy (e.g. that do not deal with fundamental rights) as closely as possible to Parliament’s intention.
Liversidge v Anderson  AC 206 [HL].
- Demonstrates the primacy of civil liberties and human rights in determining the appropriate scope of discretionary power, inherent in common law even prior to the HRA 1998.
R (on the application of Jackson and others) v Attorney General  1 AC 262 [HL] 302-303.
- Allowed for deeper reflection about the nature of Parliamentary sovereignty
- Raided, but left unresolved, the interesting question of which principle – constitutionality or supremacy of Parliament – has ultimate precedence should they conflict.
Constitutional Reform Act 2005
- Provided a structured view of the more formal separation of powers that characterises the modern constitution
- Raises the question of how the modern judiciary might be emboldened, with their function and independence given formal recognition by parliament.
For simplicity, this essay will refer to the ‘British constitution’ to cover the primary law of the United Kingdom generally, and the constitutional commonalities of all three Kingdoms.
The Crown in Parliament will be used interchangeably with the Executive in Parliament. Although they are not legally identical, this usage arguably better reflects modern constitutional tensions.
A.V. Dicey, Introduction to the Study of the Law of the Constitution (first published 1885, 8th edn., Macmillan 1915), 3-4.
Dicey (no. 3) 114.
See Jeffrey Jowell, ‘The Rule of Law and its Underlying Values’ in Jeffrey Jowell and Dawn Oliver (eds.) The Changing Constitution (7th edn., OUP 2011).
See Lord Steyn’s comments in R (on the application of Jackson and others) v Attorney General  1 AC 262 [HL] 302-303.
See Nicholls and Hope LLJ ibid., 288, 303.
Jowell (n. 8) quoting R. Dworkin, A Matter of Principle (1985), ch. 1.
Lord Bingham, ‘The Rule of Law’ CLJ 66 (2007) 65, 69.
Jowell (n. 8) 11.
Bingham (n. 14) 69-82.
 AC 75.
 2 AC 147 [HL].
See Andrew Le Seuer, ‘Three Strikes and it’s Out?’  PL 225.
 AC 206 [HL]
See Mark Elliot and Robert Thomas Public Law (2nd ed., OUP 2014), 224-229.
Quoted by Bingham in ‘The Rule of
Law’ (n. 14) 85.
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