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.
What then is the modern role of the common law in the United Kingdom’s Constitution? Remember first that when you speak of the United Kingdom you are speaking of three separate jurisdictions. Northern Ireland’s has moved in fairly close conformity with that of England and Wales in terms of public law (although on some topics, notably the use and misuse of public interest immunity to protect national security, England and Wales could well learn from the jurisprudence of Northern Ireland), but that of Scotland, although equally concerned with the invigilation of executive government and public administration, has been constrained both by its own tradition of law and by the continuing anomalies of Scotland’s constitutional status to follow a perceptibly different course. What I have to say here relates principally to England and Wales, where modern judicial review has become surrounded by a mythology partly of its own making and partly generated by overheated media treatment. The vast majority of judicial review cases have little to do with the exercise of state power on any but the most routine level: they are last-ditch attempts to avoid deportation for breach of the immigration laws and rules, or to secure housing for a homeless person. But there is no doubt that the courts are from time to time called on to sit in judgment on ministers and their departments on issues which would until recently have been regarded as matters of policy, and to do so on the application of people who might until recently have been regarded as having no right to be heard.
It is this incremental readiness to take a hard look at the legality of acts of government which represents the modern sea-change in public law. As I have said, it was the Victorian judges who were responsible for turning judicial review into a developed system for supervising the lower courts and official bodies to whom state power was being systematically delegated. It is in their judgments that you will first find the tests of lawful decision-making which Lord Greene later summarised in the much-cited Wednesbury case, a decision which introduced no new doctrine of law and of which the outcome (upholding a highly questionable ban on children going to the cinema on Sundays) exemplifies the state of torpor into which English public law had descended by 1948. The reasons for the decline are still little explored. It can be seen setting in at the time of the Great War, partly no doubt because of a sense that to challenge government in a time of crisis would be unpatriotic, but partly too because there was now in place the career Civil Service which Northcote, Trevelyan and others had agitated for in the 1860s, and which by the first decades of the century was filling the top echelons of Whitehall with the best brains from Britain’s best schools and universities – men in whose capacity for sound public administration not only ministers but judges felt complete confidence. The departments of state which the Civil Service ran were in turn responsible for the plethora of adjudicative tribunals and boards which administered the state at local level, again making judicial invigilation seem superfluous. The fact that local authorities, the one element of the state over which central government had no immediate control, continued to attract the sharp eye of the law, provoking the celebrated denunciation by the House of Lords of the surcharged Poplar councillors (with their ‘eccentric principles of socialist philanthropy’ and ‘feminist ambition to secure the equality of the sexes in the matter of wages’), supports this thesis. The interwar years saw executive government achieve a consolidation of state power unequalled before or since. In a period of changing governments and political and economic instability Parliament itself may well have welcomed this anchorage, as ministers and policies came and went. Although in 1929 Lord Chief Justice Hewart (who had previously been a member of the Government as Attorney-General) published The New Despotism, fulminating at the impotence of the courts in the face of statutes giving the executive powers of primary legislation, while in the same year the Permanent Secretary to the Lord Chancellor, Sir Claud Schuster, asserted in a private memorandum that in recent years ‘the weight of prejudice against the State in the minds of many members of the Court of Appeal and Judges of the High Court has been such as seriously to affect the Administration of Justice,’ neither fundamentally challenged the pattern of executive supremacism and judicial passivity between the wars.
It was into the culture of administrative self-assurance that the 1945 Labour Government came with a solid majority and a mandate for radical change. There is little doubt that it owed to that culture both its political achievements and its relative freedom from successful legal challenge. The legal literalism of Lord Chancellor Simonds, which has become a byword for narrow formalism, was only part of a general mood of legal minimalism which left the Chancery Division short of work and put the Bar into a numerical decline that was not reversed until the late Sixties. There is evidence, too, of conscious judicial abstention from anything that might be seen as political interference. If in the decades since then a major shift has occurred in the structures which hold Parliament, judiciary and executive in an ordered relationship with one another, such shifts are in principle not only predictable but necessary: as with the joists and beams of a house, room for a certain amount of movement is required. Lord Diplock, looking back in 1982, described this as a purely reactive process by which judges had moved to ‘preserve the integrity of the rule of law’ in the face of ‘changes in the social structure, methods of government and the extent to which the activities of private citizens are controlled by governmental authorities, that have been taking place, sometimes slowly, sometimes swiftly, since the rules were originally propounded.’ Those changes, he added significantly, ‘have been particularly rapid since World War Two’. Coming from the judge who perhaps more than any other deserves recognition as the engineer, if not quite the architect, of modern public law, whose sense of history and policy was as acute as it was illiberal, and to whom the throwaway remark was a foreign concept, these reflections matter. Lord Diplock acknowledges and asserts the function of public law as a source of enforceable standards in public administration; but he describes these as changing manifestations of a constant principle, the rule of law, not as a series of shifts in the law designed to meet shifts in the polity.
I think this distinction, though relevant, is more a matter of presentation than of substance: the reality is that standards of justice do change. One member of the court which decided Cooper v. Wandsworth Board of Works was the judge who had tried the case in the first instance – something regarded as normal then and as wholly unacceptable now. I would prefer to live with the fact that even something as basic as the norms of due process can change, rather than try to argue that justice is a metaphysical constant of which only the manifestations change in response to changes in the wider world. But the importance of Lord Diplock’s account is that it acknowledges the interventionist role of modern public law, in particular in maintaining legal standards within changing modes of social organisation and government. This may, first of all, afford some explanation of the early reawakening of modern public law in the Northumberland case in 1952, when a tribunal defied the court to rectify its admittedly wrongful treatment of an office-holder displaced by the new NHS. Reacting perhaps against the corporatism which the consensus politics of the wartime and postwar years were threatening to turn into a permanent feature of the state, the Court of Appeal, displaying an impressive grasp of legal history, swept judicial and administrative acts back into a unitary system of supervisory control. Secondly, it offers a coherent explanation of the subsequent growth of public law doctrines – a growth which, however, has not itself been entirely coherent. Thirdly, and within this process of growth, it may help to explain the continuing momentum of public law during and since the Eighties. This period has witnessed a shift within government from an inherited culture of cautious and deliberative policy formation and implementation, always trammelled and sometimes paralysed by legal advice, to a more muscular culture of determined decisionmaking. The shift itself is a fact of political history with which the courts have no immediate concern. But in the light of it, we should not be surprised that the traditional process of prior caution – in the words of Lord Woolf, a distinguished former Treasury counsel, ‘if the legality of a course of action was in doubt, it was not adopted. Now it appears to be [be]coming a case of anything is permissible unless and until it is stopped by the courts’ – has yielded to a process in which legal challenge, instead of being an occasional and unexpected obstacle, becomes an occupational hazard of the conduct of government.
The problem of the lawfulness of government action, in other words, has never been absent: what has shifted is the forum in which it is typically resolved. The Pergau Dam case is a good example: it is now known that ministers did not consult the Foreign and Commonwealth Office’s own lawyers before deciding to fund it from the aid budget, a move which on subsequent challenge was held by the court to be unlawful. In an earlier period it is almost certain that the issue, although it would have arisen, would not have reached the courts: the aid allocation would have been considered departmentally and if necessary with the advice of Treasury counsel, and if its legality had been thought doubtful it would have been modified or dropped. There is nothing necessarily wrong with a policy of doing what is thought best and leaving any legal challenges to the courts; but it is hardly reasonable to criticise the courts if they then entertain some of the challenges which are brought and occasionally uphold them. (You can sometimes find the same newspaper criticising judicial intervention in a judgment of which it disapproves and then on the next page cheering a victory for somebody whose rights the courts has vindicated against the state.) The same may well be true of the public controversy between senior judges and ministers about changes to the criminal justice system: not many years ago the issues which have now become public property would have been resolved by a quiet word and a rethink. This, however, is a question of policy, not legality, and there is force in the view that the change, though embarrassing, is for the better, bringing the issue out of the inaccessible corridors of power and into the open space of public debate where it properly belongs.
The other chief reason the Pergau Dam case could be adjudicated on is that the courts have in recent years opened their doors wider to applicants who have nothing personally or collectively to gain from the resolution of an issue but who have a respectable reason for bringing it before the court. This again is not new. In 1916, when anti-German feeling was at its height, a man called Sir George Makgill obtained leave to seek orders barring two citizens of German extraction, Sir Edgar Speyer and Sir Ernest Cassel, from remaining in office as Privy Counsellors. What is interesting about the case is not that he lost but that both the Divisional Court and the Court of Appeal entertained it when Makgill manifestly had no personal stake in the outcome. Lord Reading, who presided over the Divisional Court, said: ‘Sir George Makgill appears to have brought this matter before the court on purely public grounds without any private interest to serve, and it is to the public advantage that the law should be declared by judicial authority. I think the court ought to incline to the assistance, and not to the hindrance, of the applicant.’ He drew authority, in turn, from a decision by an 18th-century Chief Justice, Lord Kenyon, who said: ‘I do not mean to say that a stranger may not in any case prefer this sort of application, but he ought to come to the court with a very fair case in his hands.’ Although not in itself responsible for more than a handful of cases, it is the rediscovery of this principle which signals the contemporary shift in the perception of public law from a system which merely offers a different path to the vindication of private rights to a system of invigilation of the legality of government action. It focuses attention, in particular, on the fact that public law is concerned not necessarily with rights (which inhere in individuals) but with wrongs in the conduct of the state (which may but do not necessarily invade individual rights).
But the shift is by no means entirely the doing of the courts. Not only have the courts been obliged to take on the invigilation of two major statutory systems – immigration and asylum, housing and housing benefits – in order to ensure both that Parliament’s laws are properly applied and that the procedures by which they are applied are themselves fair and above board; they have been given by Parliament the obligation, under the European Communities Act 1972, of ensuring that ministerial measures which have the force of law and Parliament’s own statutes conform to the law of what is now the European Union. The European Court of Justice has held that where domestic law conflicts with European law the duty of the domestic court is to limit or strike down the former. To characterise this process as judicial supremacism, when it is Parliament which has consciously legislated to produce it, requires a fair measure of intellectual perversity.
There is a further dimension of the European Communities Act which is worth noting. In the special case where a later domestic statute clashes with a European law given effect by the European Communities Act 1972 – as the Merchant Shipping Act 1988 did – its effect has been to reverse the presumption that a later statute overrides an earlier inconsistent one. This represents a substantial qualification of a tenet of our Constitution: that no Parliament may bind its successors. The courts have necessarily had the task of establishing this qualification, and in doing so they have given us, in effect, a fundamental law, one with which other legislation must conform. Such a law is, precisely, a constitutional instrument. It is, however, not entrenched in the way the United States’s Constitution is: it can be repealed or amended by a simple majority and without any special procedure. Seen in this light, it is not unique. There is much to be said for the view that the Bill of Rights 1689 is an original instrument of the same kind: it was adopted during a brief period when Britain had neither a king nor a Parliament (James II having first dissolved Parliament and then fled), by an ad hoc convention which offered William of Orange the Crown, accompanied by a Declaration of Rights which the convention, endorsed the next year by a lawfully summoned Parliament, passed into law as the Bill of Rights. The Bill of Rights can therefore be said, historically at least, to embody the terms on which the Crown itself holds power. Yet the Royal Assent was only last year given to an amendment of Article 9, permitting MPs to waive their constitutional immunity from the questioning in other forums of what they say in Parliament – an immunity which was widely thought to be Parliament’s own and not a personal protection for individual MPs – in order to allow them to bring libel actions with greater freedom. Our fundamental laws, in other words, are at bottom statutes like any other. But the fundamentality of the European Communities Act, so long as it is on the statute book, is undoubtedly of a new kind, giving the courts the power and the obligation to cut down domestic statutes which offend against European law and representing, therefore, a major hiatus created by Parliament in its own sovereignty.
Why then is it that these two things – the conscientious enforcement of Parliament’s statutes and the continued adaptation of the common law to the needs of a changing world – have been presented to the newspaper-reading public as a conflict between ministers and judges, the broadsheets on the whole supporting continued judicial invigilation of executive government, the tabloids for the most part suggesting a comprehensive judicial assault on the foundations of democracy? The tabloid attacks have been based on the frail premise that since executive government derives its authority from a majority in the House of Commons and is in turn answerable through ministers to Parliament, it speaks for the people, so that those who challenge government are challenging democracy. But a democracy is more than a state in which power resides in the hands of a majority of elected representatives: it is a state in which individuals and minorities have an assurance of certain basic protections from the majoritarian interest, and in which independent courts of law hold the responsibility for interpreting, applying and – importantly – supplementing the law laid down by Parliament in the interests of every individual, not merely of the represented majority. It is also, in modern conditions, a state in which public administration at many levels requires, on the one hand, considerable freedom to form and implement policy and, on the other, constant invigilation both by Parliament, to ensure that executive policy and practice conform to its wishes, and by the courts, to ensure that they conform to the law. Because Parliament lacks the resources to govern directly (a consequence in part of the sheer complexity of modern government, but in part of Parliament’s own inefficient use of its powers and underfunding of its personnel), enormous tranches of public power have been and continue to be delegated to ministers by statutes which enable them – indeed, require them – to legislate by proxy. Parliamentary scrutiny of these measures, even in the minority of cases where they require the affirmative approval of both Houses, is rarely close.
But it is precisely because ministerial government in consequence enjoys a high degree of autonomy, enabling it in large part to control the Parliament to which it is theoretically subordinate, that it is crucial to stress the constitutional fact that the executive does not possess anything which can accurately be called sovereignty. It is in Parliament and the courts, each exercising a discrete though interdependent function of the state, the legislative and the judicial, that the sovereignties of the state reside. The executive has a huge range of functions which are exclusive to it, but neither politically nor legally does it have the last word: as its name suggests, it carries out what the legislature or the Royal Prerogative confides to it in whatever ways the law permits.
It is a necessary condition of this dual sovereignty that each body should respect the territory of the other, and since the 17th century Parliament and the courts have been remarkably successful in this. At the start of the 18th century, when Chief Justice Holt was hearing argument in the great constitutional case of Ashby v. White (which established the courts’ jurisdiction to see fair play in elections), the Speaker of the House appeared with his retinue and threatened to have Holt impeached for contempt of Parliament. He desisted when Holt threatened to have him imprisoned for contempt of court, and the truce between legislature and judiciary has held ever since. What matters greatly, however, is where ministers as the heads of the executive departments of state have stood since then. They have stood answerable to Parliament (if they were members of either House) on matters of policy and to the courts on matters of law. When a Home Secretary, Lord Halifax, was sued by John Wilkes for punitive damages for having unlawfully issued a general warrant to search for seditious papers, Chief Justice Wilmot told the jury: ‘The law makes no difference between great and petty officers. Thank God, they are all amenable to justice’ – and the jury found accordingly. And when a later Home Secretary, Kenneth Baker, ignored a court order requiring him to bring back a Zairean asylum-seeker whom his department had deported while the man was seeking the protection of the courts, the House of Lords in a major vindication of the rule of law held Baker guilty, in his official capacity, of contempt of court. Few things could illustrate more sharply the distinct and parallel sovereignties of Parliament and the courts on the one hand, and the limits of ministerial autonomy on the other. Indeed, the relative immunity of ministers from Parliamentary sanctions, now that ministers no longer fall on their swords when a departmental disaster occurs, has thrust into greater prominence the role of the courts as guardians of the standards of lawful ministerial action. It also illustrates the fragility of convention as a source of constitutional law.
Giving judgment in the Zairean refugee’s case, Lord Nolan, then a member of the Court of Appeal, adopted a formulation which I had tentatively advanced as counsel in the case: ‘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.’ If, as I continue to believe, this is a correct appreciation not only of the governing principle but of what the relationship is in practice, the suggestion that judicial review of the executive represents a usurpation of democracy is the reverse of the truth. It is also unsustainable on a more detailed inspection. Ministers are no more elected than judges are: both are appointed to office by the Sovereign, ministers on the advice of the Prime Minister, judges on that of the Lord Chancellor. It is judicial independence, an essential component of any democracy, which dictates that judges are not answerable to Parliament, just as Parliamentary sovereignty dictates Parliament’s immunity from judicial adjudication. But while ministers are accountable legally to the courts and politically to Parliament, there is no constitutional requirement that ministers must be accountable to the representatives of the electorate. Those who are peers answer only to the unelected chamber. Moreover neither law nor convention requires them to be members of either House: in recent decades at least two individuals – Patrick Gordon Walker and Frank Cousins – held ministerial office when they were neither MP nor peer.
In spite of these elementary constitutional facts, much of the press has seemed to suggest that executive government is the apex of the democratic structure and that judges who overset ministerial decisions are overstepping their powers and jeopardising democracy. The main spate of such criticism, although largely directed at other judges, coincided with the gestation of two major reports which government was awaiting with natural concern: Lord Nolan’s first report on standards in public life and Sir Richard Scott’s report on the arms for Iraq affair. With the publication of the two reports the campaign has perceptibly died down. It prompts one particular reflection. The lobby system, by which any receptive journalists are fed government’s own version of events, depends for its existence on the lack of open access to government information. If the public had ready access to government data on these issues – which by definition are not confidential – there would be no reason (other than the unthinkable ones of venality or idleness) for journalists to look to government spokesmen for their copy, and there would equally be a more closely defined basis on which government could filter information for public consumption. The experience of Sir Richard Scott, who found that every step he took in an endeavour to be as open as possible in completing and presenting his report became the source of pre-emptive counter-strikes designed to undermine it, illustrates how far we have travelled from received notions of public probity.
Does – or should – the common law have anything to say about the conduct of those who hold public office, either ministerial or official, in this no man’s land on the peripheries of Whitehall, where the court’s writ runs, and Westminster, where it does not? If, for example, the High Court’s attention had been drawn to the fact that a Member of Parliament was prepared to put questions to ministers in return for money payments, could it and should it have been prepared to grant an injunction or an order of prohibition against the MP? Almost certainly not, since what the Member does on the floor and within the precincts of the House in his or her capacity as an MP is a matter for Parliament alone. But would this mean that the lobbyist necessarily enjoyed a similar constitutional protection from the attentions of the law? To take a different example, at least one MP in the past was unwilling to refer legitimate constituents’ complaints to the Parliamentary Ombudsman on the grounds that this was an unconstitutional office. Could and should the courts have been prepared to require him to do so? There is nothing, it seems, that Parliament itself can do about it; yet it is Parliament which has legislated to give access to the Ombudsman through MPs. Would the court’s ordinary obligation to give effect to such legislation meet an immovable object in the privileges of Parliament, or would the courts be expected by Parliament itself to prevent the obstruction of an important channel of recourse for citizens against the state?
There are other constitutional problems. Probably the most valuable guide to a Bill going through Parliament is the Notes on Clauses prepared by the drafter to explain the intended effect of the measure. White papers no doubt help, but they have a public relations function which can diminish their utility. Ministers have the Notes on Clauses to hand; the public does not; nor does the opposition except in those cases (a growing number) where a copy is made available to them – although, for some reason, this may be a different version from the one provided for ministers. It is principally from these notes, supplemented by departmental briefings, that ministers answer questions about legislative intent, and since the recent decision of the House of Lords in Pepper v. Hart, it is from ministerial answers that in cases of ambiguity or obscurity the courts may derive the true meaning of the legislation. Ought not the courts, as well as any seriously interested member of the public, to be entitled to a sight of the Notes on Clauses – not when they are lodged 30 years later in the Public Record Office but when they matter? If so, is their disclosure a matter of Parliamentary grace – in which case it is beyond the purview of the courts – or of departmental discretion? If the latter, is it a discretion which, like other discretions, has legal limits; and, if so, what are they? There may be no private law right to such access, but public law, as I have said, is concerned centrally with wrongs rather than rights. Is it a misuse of public power to deny the public access to non-confidential departmental information without good reason?
Whether because of press agitation or because of the natural trajectory of the pendulum of legal policy, or – as I think most likely – because of the enduring quandary of the common law in its endeavour to be simultaneously certain and adaptable, there is unlikely to be any major change in public law’s hesitantly incremental process of growth. If there was a point of overreaching, it was probably in the early Eighties when local government was so cowed by the adverse decision of the House of Lords in the Fares Fair case that the GLC found itself taking counsel’s opinion on whether it could renovate the lifts at Goodge Street tube station. If things have quietened down, it is because subsequent delegated legislation to cap the raising of local revenues – such as the council tax – has been upheld by the courts of judicial review, leaving local government to adjust to its new role as the local administrator of central government policy. In jurisdictional terms, the growth of public law in these years, beyond the control of the use of Royal Prerogative, has been modest. Much of the apparent growth in the grounds of judicial review has been a rediscovery of long-established principles. But what has changed, without doubt, is the readiness of the courts to take tenable challenges seriously and to exact high standards of fairness and legality in public administration. If we no longer decide cases in the administration-minded way in which leading cases earlier this century – such as the Wednesbury case – seem to have been decided, it is because the common law has tried conscientiously to maintain the rule of law in a polity characterised as never before by continents of statute law, rafts of delegated ministerial powers and muscular policy imperatives. In doing this, it has been performing its proper, non-confrontational, role within our organic Constitution.