The Common Law and the Constitution
It is conventional wisdom, at least among lawyers, that the Constitution of the United Kingdom is in its essentials the creation of the common law – an accretion of legal principles derived from judicial decisions which determine for the most part how the country is to be run from day to day. Apart from the historic texts – Magna Carta, the Bill of Rights – statutes were until this century regarded, by lawyers if not by Parliamentarians, as dangerous reefs in the great ocean of the common law, to be observed chiefly in order to circumnavigate them. During this century the body of statute law has broken the surface at many points, forming sometimes small islands – such as the unnecessary but minor incursion of the legislature into the judge-made law of judicial review – and sometimes great land-masses like the modern law of real property, supplanting the common law and equity, or whole continents of social and economic provision for which the common law itself has no remit.
Some of this legislation has been needed to get the common law out of holes into which it has dug itself. The common law’s obsession with freedom of contract, to the exclusion of obvious disparities of bargaining power (though not of impediments to free trade), has repeatedly compelled Parliament to intervene in the interests of substantial justice: for example in the Factories Acts and related industrial safety legislation passed from 1837 onwards; the Rent Acts, initially passed during World War One to stop rack-renting of small tenements; the race, sex and disability discrimination laws and so forth. Legislation has been needed, too, to bring into being systems of adjudication and distribution of public funds in schemes of social provision such as the national insurance and social security systems. On all of these, however, the common law in turn fixes its eye. It insists that, save where Parliament has plainly excluded it, every decision arrived at by the statutory tribunals which fix rents, for instance, or decide on entitlements to benefit can be reached only after a properly conducted hearing by a disinterested tribunal. And it has done the same in relation to bodies created not by Parliament but by ministers exercising the Royal Prerogative or by institutions setting out in the public interest to regulate themselves.
It is frequently said that in doing this – at least in relation to statutory bodies – the courts are simply giving effect to Parliament’s unexpressed intention; or that Parliament today legislates in the knowledge, and therefore with the passive intent, that the common law will impose its own standards on the decision-makers on whom Parliament is conferring authority. Both views involve an imaginary individual whom one has to visualise as an officious backbencher (a cousin of the officious bystander who acts as referee when there is a debate about whether a term is to be implied in a contract). The officious backbencher rises to his or her feet in committee when a clause setting up some new decision-making process is being debated and says: ‘Can the minister assure us that it is not intended that decisions should be taken under this measure without hearing both sides, or by someone with a stake in the outcome, or to the exclusion of relevant factors or in reliance on irrelevant ones, or in bad faith, or by someone who has taken leave of his senses?’; and the minister has to be visualised as replying, without even consulting his written briefing or turning in panic to a departmental official: ‘Of course.’
The truth is both more difficult and more interesting. From the second quarter of the 19th century. Parliament, now increasingly representative and responsive, began to legislate in earnest – frequently on the basis of major reports by Royal Commissions – to regulate the chaos of early industrial and urban development. It imposed obligations on factory-owners to take safety measures for their workers and on property-owners to keep buildings in a sound state, and it set up powerful boards and commissions to oversee and regulate the profusion of railways, docks, canals and other enterprises which were threatening to destroy the conditions of their own existence. These bodies were perceived by the propertied classes as dangerous invasions of individual liberty, and it was in order to restrain them that sympathetic Mid-Victorian judges established many of the principles now familiar as the rules of modern public law. In a pattern familiar in the United States today, they repeatedly granted orders of certiorari to quash regulatory decisions made by these bodies, and when Parliament reacted by including no-certiorari clauses in its amending legislation, they granted mandatory orders instead. It was by no means a one-way process. Although the judges made life difficult for some of the canal and railway boards, they also used their powers to compel reluctant local justices, most of whom were themselves employers, to convict mill-owners of breaches of provisions of the Factories Acts designed to protect workers from injury or death. And when in 1863 a builder called Cooper found that the Wandsworth Board of Works had ordered him to pull down a house he owned without first giving him a chance to be heard, the Court of Exchequer struck down the order, not on the officious backbencher’s ground that Parliament must have intended some form of hearing and had simply failed to say so, but on the judicial ground that where statute was silent the common law would speak in its own right. ‘The justice of the common law,’ Mr Justice Byles said, ‘will supply the omission of the legislature.’
It is this alone which can furnish a consistent rationale for the now established power of judicial oversight of bodies which lack any statutory origin but which fulfil public functions: most notably the Criminal Injuries Compensation Board, which was set up in 1965 by means of a white paper and was therefore the creation entirely of the executive, and the City Panel on Takeovers and Mergers, a voluntary body forming part of the City of London’s means of self-regulation. The power to review the exercise of the Royal Prerogative was established as early as 1967, when the Crown challenged the right of the High Court to entertain a dispute about whether the Criminal Injuries Compensation Board had acted in accordance with the remit contained in the white paper which set it up. It is not the leading judgment of Lord Parker which today merits rereading bur the second one, in which Lord Justice Diplock observed that what was in dispute was the last unclaimed prize of the constitutional conflicts of the 17th century. Government had assumed that the exercise by ministers of the Royal Prerogative furnished the executive with a continuing residue of power, questionable (if at all) in Parliament but beyond formal challenge in the courts. The assertion by the High Court that executive government possessed no such immunity was one of the great milestones on the road down which we are still moving towards government within the law. Twenty years later, in a case of comparable importance, the Court of Appeal held that the court’s writ ran to an entirely nongovernmental body – the Panel on Takeovers and Mergers – which nevertheless exercised power over matters of public concern. None of this jurisprudence is explicable as the simple implementation of Parliament’s inarticulate wishes; it is, precisely, the justice of the common law which is in play.
The smallest and most picturesque of the scattering of statutory islands in the sea of common law are well enough known: Magna Carta, the Bill of Rights, the Act of Settlement, the Act of Union. But there are many others, larger and duller: the Representation of the People Acts, the Local Government Acts, the Tribunals and Inquiries Acts, the Judicature and Supreme Court Acts. These provide – to change the metaphor – the hardware of the machinery of state. The common law is one of the things – the software, if you like – that controls the operation of the machinery, but it is not the only thing. Within executive government a web of conventions provides procedures and assurances falling short of rules of law. And, far more potently, Parliament possesses its own law, its customs and privileges, which both respect and are respected by the common law.