Stephen Sedley on the separation of powers
Although it is unusual, there is nothing novel about a member of the Bar being appointed directly to the UK’s highest court. When the highest court was the appellate committee of the House of Lords, appointments to it were occasionally made in this way, sometimes to good effect. Among the last, now more than half a century ago, were James Reid QC, a Scottish Tory MP who, as Lord Reid, became one of the best judges of the postwar years, and Cyril Radcliffe QC, a distinguished public servant and barrister.
The legislation which in 2009 took final appeal in the UK out of the legislature and into its own space, and which populated it with judges who, although titular lords, no longer had to be peers, made provision for appointment to the new Supreme Court to be open to any lawyer of more than 15 years’ standing. (It failed to take the opportunity to make leading legal academics eligible – a gateway which, for example, gave Canada one of its greatest chief justices, Bora Laskin.) The first beneficiary of this dispensation, Jonathan Sumption QC, a noted historian as well as a leading lawyer, was sworn in in January.
Last November, after he had been appointed but before he had taken office, Sumption delivered one of the law’s more prestigious annual lectures to a packed audience in Lincoln’s Inn. Entitling it ‘Judicial and Political Decision-Making: The Uncertain Boundary’, he used the lecture to reprove the judiciary which he was about to join for failing to keep out of the political arena. As the audience filed out, someone said: ‘At last we have our own Scalia.’
Like Justice Scalia of the US Supreme Court, Sumption felt able to characterise the constitutional debate in America between originalists and their opponents as ‘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.’ This is how originalists have sought to present the issue, purporting to restrict lawful interpretation to the framers’ original intent and denouncing liberals who treat the Constitution as a living instrument for using interpretation to make new law. But now that they dominate the Supreme Court, it is the judicial ideologues who purport to draw the originalist line, Scalia prominent among them, who are making law for all they are worth. Among many instances, they have recently made unsolicited use of a lawsuit about democratic representation in order to declare unconstitutional all legislative restrictions on corporate election funding. What can be said, as Sumption suggests, is that the US, with a judicial power to strike down primary legislation, stands at one end of a spectrum of judicial interventionism. What cannot be said, as he then suggests, is that France stands at the other.
France, Sumption asserts, was ‘the first country in the world to develop a coherent scheme of public or administrative law’; yet, he says, ‘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.’ If this is literally the case, it is simply because judicial oversight of public administration is entrusted by the constitution to the Conseil d’Etat, which is formally a part of the administration and not a court. Sumption, acknowledging this, seeks to advance his thesis of British exceptionalism by asserting that ‘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.’ Having sat both with the section du contentieux and with a regional tribunal administratif, and having talked and worked with their judges (for that is what they are), I can say for certain that this is not the case where policy-making spills over into law. As long ago as 1873 the Conseil d’Etat took a step the UK courts have never taken, by holding the state liable to pay damages for serious abuses of power. The leading British commentary, Brown and Bell, holds that ‘the surprising feature’ of French administrative law, given its Napoleonic origin, is the fact that ‘it has survived to provide one of the most systematic guarantees of the liberties of the individual against the state anywhere in the world.’ I know of no French commentary which takes a different view. Sumption cites the well-known remark of one of the architects of the Napoleonic Code, Jean-Etienne-Marie Portalis, ‘Juger l’administration, c’est aussi administrer’ as if it were a warning against judicial review. In fact, Portalis was arguing for a specialist court to supervise the legality of public administration – something both France and Britain now have. None of this gives support to any suggestion that France has a domesticated poodle where Britain possesses a junkyard dog.
How far, Sumption then asks, can judicial review go before it trespasses on the proper function of government and the legislature in a democracy? The question, he tells us, ‘has never troubled practitioners, and rarely features in the judgments of the courts’. In consequence, he concludes, ‘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 is as difficult to know where to begin answering these assertions as it is to know what they are based on. Like a good many other public law practitioners, academics and judges, I have spent my working life thinking about and dealing with little else. But one thing we have not done is to conflate government and legislature, as Sumption does in order to suggest that both ought to be equally immunised by their democratic credentials from judicial oversight. The courts go to considerable lengths to respect the constitutional supremacy of Parliament; Sumption gives no serious instances to the contrary. It is the executive – the departments of state over which ministers preside, along with quangos and local government – which is subject to public law controls. That is because executive government exercises public powers which are created or recognised by law and have legal limits that it is the courts’ constitutional task to patrol. When I argued the leading case of M v. Home Office in the Court of Appeal (the case went on to the House of Lords, which confirmed the liability of ministers for contempt of court in the discharge of their offices), I proposed a formulation which Lord Justice Nolan adopted in his judgment and which has been accepted as correct by our unreflective and atheoretical profession: ‘The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is.’
So one returns to Sumption’s lecture to see what it is that Britain’s judges have been doing that they ought not to have been. He cites Lord Justice Laws’s distinction of principle between ‘macro-policy’, which with rare exceptions is a matter for ministers and not for the courts, and policy as it affects individuals, which is the stuff of judicial review. But the principle, while ‘never overtly rejected’, is according to Sumption not consistently applied: ‘The tendency of the courts to intervene in the making of “macro-policy” has become more pronounced.’ Indeed ‘many of the decisions of the courts [on fundamental rights] have edged towards a concept of fundamental law trumping even parliamentary legislation.’
His main evidence for these categorical assertions, couched as they are in the language of the present, consists of four cases decided respectively in 1995, 1996, 2000 and 2002. The first of them is the case in which the High Court struck down a £234 million subvention to Malaysia which, while directed to the construction of the Pergau Dam, was tied to kickback orders for the British arms industry, and had in any event been condemned by the government’s own advisers as a waste of money. The ground on which the court intervened was that the grant was not authorised by the statute under which Douglas Hurd, the foreign secretary, had purportedly made it, because it was not capable of fulfilling the statutory purpose of promoting development. In other words, the court was doing its job of testing the legality of executive action against the relevant statutory power. It was not, as Sumption openly suggests it was, substituting its own view of policy for the foreign secretary’s. We don’t know if the High Court got it wrong, for example by reading ‘development’ as meaning ‘sound development’, because the foreign secretary (who had failed to obtain advice from his own lawyers) didn’t appeal and instead took the short cut of using different funds for the same purpose. That was in 1995.
In 1996, a split Court of Appeal struck down social security regulations which took all benefits away from asylum seekers who had not claimed asylum on entry to the UK. The court applied to the executive’s power to regulate benefits Lord Ellenborough’s ruling in 1803 that the exclusion of impoverished foreigners from the system of poor relief was contrary to ‘the law of humanity, which is anterior to all positive laws, [and which] obliges us to afford them relief to save them from starving.’ But the story did not end there. When in 2002 the home secretary, David Blunkett, slipped into a bill a provision expressly empowering such action, the Human Rights Act required him to include a safety-net provision that the use of the power was not to result in inhuman or degrading treatment of the destitute. Mr Justice Collins, a conscientious and experienced High Court judge, who tried to take a principled approach to the problem of hungry and ill asylum seekers on our streets, was rewarded with public abuse by a home secretary who appeared to have a shaky grasp of the separation of powers; but he was vindicated by both the Court of Appeal and the House of Lords which, duly applying Parliament’s own legislation, held that it did not authorise executive action that would render the treatment of the already destitute inhuman or degrading. One might have considered this something to be proud of; but Sumption considers it to be evidence of judges failing to read Parliament’s intentions accurately – in this case an intention contained in an Act of 1993 which neither expressly nor implicitly conferred any such extreme power.
Sumption’s third example of judicial incoherence is the Alconbury case, which he describes as ‘one of the most remarkable instances in recent times of an attempt by the judiciary to transfer decision-making out of the democratic arena’. A challenge to a central pillar of the town and country planning system succeeded at first instance on the ground that cases ‘called in’ by the secretary of state were being denied the judicial determination to which they were entitled. It was decided at first instance by a presiding judge whose experience lay not in public law but in commercial law, and it was overset on appeal – not on the ground that such decisions were the sole province of ministers but that ministers were themselves subject to judicial review. Its real interest is not, however, as a short-lived aberration which the courts themselves corrected. It is that the government accepted that its minister was neither independent nor impartial on planning policies – how could he be? – but won the case on the ground that his decisions were subject to judicial review which was independent and impartial. What the Alconbury case contributes to a critique of current public law jurisprudence, apart possibly from an own-goal, is hard to discern.
The fourth illustration is a case in which the Court of Appeal had to decide whether a regime which imposed swingeing penalties on hauliers who were considered not to have done enough to prevent clandestine immigrants using their vehicles involved an unfair process and a disproportionate interference with property rights. The Human Rights Act required the court to answer this question, and it was divided about the answer. Sumption is entitled to his view, which others share, that the minority judgment upholding the scheme as legitimate was correct. But he is mistaken, here as elsewhere, in his conflation of delegated statutory powers, which these were, with executive policy, which this was not. Delegated powers have to be matched against the wording and the purpose of the statute that creates them, and sometimes of other statutes too. Policies are there to secure consistency and direction in the exercise of discretionary powers which would otherwise tend to be used inconsistently and arbitrarily but which need to retain a measure of flexibility.
An argument that collapses this elementary distinction gives cause for concern. So does the allegation, which Sumption repeated in an interview with the Times on the day he was sworn in, that the courts have gone outside the legitimate region of reviewing the application of policy to individuals and have embarked on the review of policy itself. Let me illustrate why these are not necessarily discrete categories. A young couple fall in love and marry. She is British; he is Chilean. Because they are both under 21, immigration rules, which set out Home Office policy, forbid him to settle here with his wife, who has a university place and a promising career ahead. The purpose of the rule is to inhibit the importation of spouses by forced marriage. Forced marriage is a serious matter meriting determined government action, but there is nothing to link the vast majority of young couples affected by the rule with it. The young couple bring judicial review proceedings. The impact of the rule on their right to marry and to live as a family is manifest. The rule itself has a lawful purpose, but the Home Office accepts that it has no bearing on them. How could the courts decide whether the impact on the couple was legitimate without considering in detail the justification for the rule itself? That is what both the Court of Appeal and the Supreme Court did. Had they not done so, the home secretary’s case would have gone unheard. All but one of the judges decided that the impact on the individuals before them was out of proportion to the policy objective. The result was not to stifle policy initiatives designed to inhibit forced marriages; these remain a matter for government alone. It was to ensure that such initiatives conformed to the law by not impacting disproportionately on individuals. This is a critical linkage which recurs in the now well developed law of legitimate expectation, which sometimes requires government to honour its promises even when its policy has legitimately shifted.
When exiguous evidence is presented in support of a thesis, it can start to look as if there is something wrong with the thesis. But, however poorly substantiated, critiques of this kind offer encouragement to sections of the media which are out to get the judges. Last December, at one of the lord chief justice’s press conferences, a tabloid journalist asked: ‘The new member of the Supreme Court, Mr Sumption, has made it clear that he believes that judges, using mainly processes of judicial review and human rights, have delved too far into the everyday decision-making in politics – my examples being the recent cases involving Sefton and the Isle of Wight, and the High Court has told local councils what cuts they may or may not make. Do you agree with Mr Sumption?’ ‘I am very sympathetic with Mr Sumption and the views he has expressed,’ Lord Judge said. He then explained that judges have to enforce the law, that local authorities too have responsibilities, and that the court’s decisions occasionally but inevitably had an impact on ‘administration for which others are responsible’. All perfectly correct, but not what Sumption had been saying, and not a ground for criticising any of the decisions the journalist had fed him. The Isle of Wight case, for example, required a complicated analysis of the parliamentary legislation and statutory guidance governing the duty of local authorities to provide care for severely disabled adults. Mrs Justice Lang’s careful decision, holding that the council had not gone about this lawfully, was clearly correct and has not been appealed. Such cases may well – in fact frequently do – arise from an honest error in a pressured and under-resourced area of administrative law. But one asks what the critics of such decisions want. That local authorities should be able to break the law without redress? That courts whose job it is to apply the law should abdicate? That councillors or officials should be allowed to dispense with the law if they think fit?
An uninstructed reader would gain little notion from Lord Sumption’s lecture of the extensive body of judicial authority recognising the inadmissibility of adjudication on political issues. They would find no reminder that when, at the last minute, the government produced national security as its reason for banning trade unions at GCHQ, its surveillance headquarters, in 1984 the courts backed off without demur. They would learn that when the Alconbury case reached the House of Lords, Lord Hoffmann reminded us that what is in the public interest is for legislatures and ministers to judge, but not that he also said that ‘when ministers or officials make decisions affecting the rights of individuals, they must do so in accordance with the law.’ Nor would they find Lord Bingham’s nuanced and classic account, in the Belmarsh case, of the relationship of the system of justice to the system of government:
The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision … Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions.
Instead, there is a repeated insinuation that judicial interference in the political process regularly occurs: ‘The judicial resolution of inherently political issues is difficult to defend.’ It is not only difficult to defend; it does not happen. I can recall in 1995 refusing to permit judicial review of a white paper on night flights at Heathrow which I had found to be ‘a farrago of equivocation’. I did so on the ground that its deviousness was a matter for political debate, not for adjudication. Robert Stevens in his book The English Judges comments that my decision did not endear me to ministers, but I doubt that allowing judicial review to proceed would have been more likely to earn their gratitude.
Judges who sit in the Administrative Court could give scores of other examples. Here is one from R (Wheeler) v. Office of the Prime Minister (2008):
Whether the differences are sufficiently significant to treat the Lisbon Treaty as falling outside the scope of an implied representation to hold a referendum in respect of a treaty ‘with equivalent effect’ must depend primarily, as it seems to us, on a political rather than a legal judgment. There are, as Mr Sumption submitted, no judicial standards by which the court can answer the question.
As the press conference episode illustrates, the effect of the kind of critique advanced in this lecture is not neutral. It harms the standing of the judiciary and confidence in the law, just as it would do if a judge, naming no names and citing no instances, were to deliver a public lecture on the perils of judicial corruption. Smoke, in the public mind, means fire. Nobody who knows the history of English public law would deny that there have been decisions which smack at least as much of politics as of law: the condemnation of the Poplar councillors in 1921 for paying men and women equal wages, for example. But that is a long way from the charge that modern public law judges, lacking any jurisprudential compass, routinely cross the boundary separating law from politics.
There is more in the lecture: a critique of the European Court of Human Rights for trying to make one size fit all – a problem the court itself is well aware of and has been grappling with for decades – and a perfectly tenable argument that the modern growth of public law has been stimulated by a perceived deficit in the democratic process. But there is a possibility that the central allegation of repeated judicial intrusion into the business of government will be seen as a political incursion into the business of adjudication. One leaves the lecture reflecting that if we had parliamentary confirmation hearings for new judicial appointees (something Sumption rightly opposes), this is the kind of manifesto we would get and that politicians would probably applaud. What would happen to a candidate who stood up for the integrity of modern public law and for judicial independence within the separation of powers is anybody’s guess.