Everything and Nothing

Stephen Sedley on the changing constitution

In June last year, the lord chancellor, Lord Irvine, was dismissed in a cabinet reshuffle. It was announced, not to Parliament but by press release, that his office was not to be filled and that his department was to become part of the Department for Constitutional Affairs, headed by a newly appointed minister, Lord Falconer. Of the expected ministry of justice there was no sign. The Home Office, it appeared, would not relinquish its hold on criminal justice. Then it was realised that there were scores of functions which by law only the lord chancellor could perform, and Lord Falconer, wearing a morning coat instead of the splendid black and gold robe, was sworn in as a nightwatchman lord chancellor. The joke went round Whitehall that the legislation enshrining the new dispensation was to consist of a single clause giving press releases from Number Ten the status of primary legislation.

Only then did public consultation begin. Papers on a new supreme court, the reform of judicial appointments, the future of the Queen’s Counsel system and of the lord chancellor’s office, came out so swiftly and in such polished form that the constitutional historian Robert Stevens has speculated that they must have been in preparation before the changes were announced. No doubt there is always an advantage to government in starting a process of consultation and reform with some of the major facts already accomplished; but if this was the intention, the government has run into interesting and unforeseen difficulties. Against its wishes, the Constitutional Reform Bill was referred in March to a select committee in the Lords, where concerted endeavours were made to salvage the lord chancellorship. But the genie is now out of the bottle. Once it was accepted, as almost everyone has now had to accept, that a minister of the crown ought not to sit as a judge (or, what was the same thing, that a judge ought not to sit in cabinet), the dominoes began to topple. If the lord chancellor cannot be a judge, he cannot usefully be head of the judiciary: that role has to pass to the lord chief justice, leaving his two other roles to be filled. One is the speakership of the Upper House, something which any respected member could undertake. The other is the seat in cabinet representing the justice system, a role now falling to the secretary of state for constitutional affairs and one day, no doubt, to a minister of justice.

This is not the place for an appraisal of Irvine’s lord chancellorship, but perhaps one thing should be said before the waters close over his head. Pugin’s overpowering décor in the Palace of Westminster had been in need of renewal for some time, and the previous government had initiated a rolling programme of refurbishment which reached the lord chancellor’s apartments in Irvine’s first term of office. The press, who found him arrogant, got hold of this, and of the inevitably high cost of it, just as they were looking for something less arcane than his sardonic comparison of himself to Cardinal Wolsey to belabour him with. Irvine’s rejoinder that you couldn’t redecorate the Palace of Westminster with materials from B&Q was not impeccably judged. But the notion that this was a private scam at public expense was idiotic.

Whether or not the lord chancellorship survives in name, its substantial demise, together with the institution of a supreme court, will mean that the United Kingdom has finally come to practise what both it and others have preached for centuries – the separation of the judicial and political powers of the state. This Enlightenment ideal became the orthodoxy of democratic theory in the hands first of Montesquieu, then of Madison, each of them claiming to discern in Britain the limits on autocratic government which they desired for their own countries, at a time when British judges sat in cabinet and drafted legislation. The lord chancellorship was not the only such anomaly to survive into the 20th century. The attorney-general continued for several decades to have first claim on the lord chief justice’s office, and government backbenchers continued to become QCs for the asking – and sometimes high court judges – into the postwar years. Nowhere else, however, has a genuine separation of powers come about: Montesquieu’s successors today move seamlessly between public administration, political life and judicial office, while the chief executive of Madison’s republic enjoys a power of suspending legislation which it took a civil war in this country to wrest from the crown. The parallel anomaly of the lord chancellor’s triple role was offset by the value of a minister who by convention was not a career politician and whose rank in cabinet enabled him to resist political encroachments on the judicial function.

To fill the gap, the Constitutional Reform Bill begins with a command that ‘ministers of the crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.’ Under this unexceptionable headline it goes on, a little puzzlingly, to spell out that ‘ministers of the crown must not seek to influence particular judicial decisions through any special access to the judiciary.’ It has for centuries been a contempt of court for anybody to do this, and a decade ago the appellate committee of the House of Lords made it clear that the law of contempt of court applied to ministers of the crown as it did to everybody else. Government in the UK litigates scrupulously by the book and without any special status in court. The problem in recent years has been something slightly different: attacks through off-the-record media briefings on individual judges whose decisions have been unwelcome to government. Such attacks cannot undo the decisions which have prompted them, but they put pressure on the courts hearing appeals, as well as on judges who have to decide upcoming cases in the knowledge of the journalistic abuse that may await them if they decide one way rather than the other. The European Convention on Human Rights, with its qualified guarantee of free expression, makes contempt of court a far less intimidating weapon than it once was; but it is just conceivable that the broad obligation on ministers to uphold judicial independence will do something to halt off-the-record departmental briefings against judges.

The other major anomaly in relation to the separation of powers is the presence of the senior judges in the upper legislative house. The Reform Bill aims to remove them physically to a new supreme court and to take away their legislative role. Nobody who has seen the appellate committee of the Lords adjourn when the division bell rings so that its members can go and vote on a law reform measure could doubt the oddity of the situation. But here, too, something will be lost. A number of law lords play a central role in the sometimes migrainous process of scrutinising incoming domestic European measures. There is also something to be said for the contribution they can make to debate on law reform measures, not least if (as seems to be the present intention) the senior bishops of the established church are to continue to sit and legislate by right. But the Constitutional Reform Bill is going to change all this. The first justices of the supreme court, as they are to be called, will – like most of the hereditaries – remain peers but will be disqualified from sitting or voting either in the chamber or in committee, and new appointees will not necessarily receive peerages.

Although the present law lords are divided about the wisdom of the change, the greater obstacle to the move is the need for suitable premises. A decade ago, when the handsome Public Record Office building in Chancery Lane became available, the law lords turned it down. The natural location now is the Middlesex Guildhall on the west side of Parliament Square, which was built in 1913 and is not a bad piece of design for its period; but the senior law lord, Lord Bingham, understandably wants the courtrooms changed from their looming day-of-judgment layout to a level floor, and English Heritage will apparently not have it. The likeliest alternative is Pennethorne’s mid-Victorian wing of Somerset House, sited symbolically between the Law Courts and Parliament, but currently occupied by the Inland Revenue. Perhaps the fountains set in the paving of the central courtyard, now kept down to a trickle in order to let taxmen concentrate without being distracted by children’s screams of delight, will then be allowed to shoot high again.

If, moreover, there is no longer to be a lord chancellor to speak for the judiciary in Parliament, the disqualification of the senior UK judges – not the law lords, but the judges who head the judiciaries of Northern Ireland, Scotland, and England and Wales – from sitting or voting in the Lords will mean that there is no formal line of communication at all between these two limbs of the state. To meet this, the Judges’ Council has proposed the creation of a right for the heads of the UK judiciaries to address Parliament on judicial matters without having any right to vote: an interesting idea, known in Commonwealth countries and with wider possibilities here.

One potential spin-off of the new dispensation is that if the law lords are to become simply justices of the supreme court, their inferiors in the Court of Appeal will have to lose the pseudo-peerages conveyed by the title ‘lord justice of appeal’, which was devised for them when Lord Selborne’s great reforms of the early 1870s set out to remove the anomalous jurisdiction of the House of Lords, creating in its place a professionalised appeal court. After the Court of Appeal had been created, with its new complement of lords justice, a backbench revolt got the judicial function of the House of Lords reinstated, producing two tiers of appeal where only one had been planned. The lord chancellor, as it happens, has a power tucked away in a schedule to an act that allows him to change judicial titles without fuss. If, as makes sense, the lords justice become simply justices of appeal, as they are in many Commonwealth countries, he will also have the opportunity to make all High Court judges simply ‘Justice X’. This is not quite as inconsequential as it sounds. For some reason the familiar Elizabethan usage – Justice Shallow – gave way in the 18th century to the designation ‘Mr Justice Shallow’. Women appointed in recent times to the High Court bench have correspondingly been designated ‘Mrs Justice’, whether married or not, and even if their professional names are their maiden names. Reversion to the old usage will cure these discourtesies. In the police service, dropping the female designation ‘WPC’ in favour of ‘PC’ for everyone has mattered for much the same reason, though the pun is not reproducible.

Very much more important, the long-criticised system of judicial appointments being made by the lord chancellor after taking ‘soundings’ is to go. It is a long time since the last Victorian lord chancellor, Lord Halsbury, regularly used this power to provide jobs for politicians of his own party, and much departmental effort has gone into making the system more objective. It can do little, however, to offset the way in which, while exceptional female or ethnic minority practitioners do make their way to the top (the first black High Court judge, Linda Dobbs QC, has just been appointed), the legal profession continues to be dominated by white men, frustrating efforts to diversify the bench. The proposal to change lawyers’ career patterns so as, for example, to allow them to combine part-time judicial sitting with child care, is valuable but nowhere near sufficient. One day government is going to have to get a grip on the failure of the legal profession to give all its entrants an equal chance of getting to the top.

Since 1998 it has been possible for lawyers to apply for a judicial post rather than wait to be offered one; but despite this change, the entire system has come under damaging criticism from Sir Colin Campbell’s scrutiny commission because of its lack of clarity and openness. If the reforms go through, an independent judicial appointments commission will put names forward. The government’s first proposals would thereafter have left so much in the hands of ministers as to make the system arguably worse than its predecessor. But on this as on other issues a concordat was reached early this year between the chief justice, Lord Woolf, and Lord Falconer about the main lines reforms should take. What seems likely to emerge is a commission, its members appointed by public servants independent of government, which will put its choices for appointment to government but which will have effectively the last say on who fills each judicial post. Anything less, in truth, would render an independent appointments commission practically meaningless. There remain quite serious differences about whether the system should apply to promotions as well as to appointments, but in-house promotion is not easy to defend, and it is likely that the commission will be given responsibility for this remit too, albeit with different procedures.

All of this is changing the constitution – whatever that may be – before our eyes. Of the two thousand pages of the assembled constitutions of the Council of Europe’s 46 member states, two are devoted to the United Kingdom.[*] The text explains that our constitutional law is a mixture of statute, common law precedent and ‘political practices or rules of constitutional behaviour considered to be binding’, all of them open to change without special procedures, but all of them subject since 1972 to the law of the European Union. It goes on:

In 1997, the Labour government under Tony Blair started introducing significant constitutional reforms. They include a process of devolution, i.e. devolving certain areas of government to Scotland and Wales (following the referendums, a separate Scottish Parliament and a Welsh Assembly were established), the incorporation of the European Convention on Human Rights in the UK law (through the adoption of the Human Rights Act, in 1998), the freedom of information legislation, and the reform of the Parliament.

If you forgive the proliferation of definite articles, this is not a bad account, though it lacks the fustian splendour of some of our neighbours’ written constitutions (‘We, the citizens of the Czech Republic in Bohemia, Moravia and Silesia, at this time of the reconstitution of an independent Czech state, true to all the sound traditions of the ancient statehood of the Lands of the Crown of Bohemia as well as of Czechoslovak statehood . . .’). But there is more to be said about the UK’s constitution than the EU’s synopsis might suggest.

An uncodified constitution offers certain advantages. One is that it is capable of change without drama. Another is that it does not close the categories of what is and is not constitutional. The concomitant drawbacks – that it lacks stability, that it describes rather than prescribes, and that it can be everything and nothing at the same time – are real; but there is ultimately nothing peculiar about the UK’s constitution. Like the others, it is a rich mix of text, interpretation, case-law and convention. The only formal difference is that none of our constitutional texts is called ‘The Constitution’. But perhaps the most substantive difference is that, alongside the rules and understandings about what can be done by the state, there exist a few unwritten and largely unspoken understandings about what even an omnipotent Parliament cannot properly do: prolong its own life indefinitely, for example, or purport to bind its successors. The question we have never yet had to answer is whether these constraints are real. Would a Parliament which voted to abolish general elections forfeit its legislative authority? Could a law made revocable only by a special majority be repealed by a bare majority? Such problems remain in the world of exam questions.

But last year an Asylum and Immigration Bill proposed to reorganise the adjudication system, changing the present two-tier tribunal of challenge to a Home Office refusal to a single tier. It also proposed to abolish all rights of appeal against errors of law made by the new tribunal and all avenues of judicial review in cases where the tribunal might have denied an applicant a fair hearing. The justification advanced was anecdotal evidence of abuse of the present system by a handful of asylum-seekers; but, as David Heath MP pointed out, the normal way of dealing with abuse of a system is to put an end to the abuse, not the system. Only the year before, a high-speed process of statutory review by the High Court had been instituted. In the course of an unusually loud and growing chorus of protest, both Lord Mackay, the last Tory lord chancellor, and Lord Irvine let it be known that they would oppose the clause when it was debated in the Lords, and at that point the clause was dropped.

Cynics believe that modern governments sometimes include untenable clauses in Parliamentary bills as lightning conductors to protect the merely controversial ones. The bill in question, for instance, contained directions to tribunals to treat particular forms of behaviour as damaging to a claimant’s credibility: an unprecedented encroachment on the adjudicative function which might have been expected to raise a storm. But observers thought that the ouster clause was being pursued with such determination that it was only the unusually powerful opposition that halted it. In a public lecture, Lord Woolf expressed surprise that ‘the government does not see it as inconsistent to promote a clause designed to exclude the courts from performing their basic role of protecting the rule of law at the same time that it is introducing the present constitutional reforms.’ In a major lecture in Cambridge, Ronald Dworkin put forward grounds of principle on which the courts would be entitled, even bound, not to implement the clause if it became law. There was widespread concern among lawyers and judges at a measure which seemed unconstitutional in the serious sense that it sought to deny the role of legality in public administration and of the courts in administering law. Had it gone through, no error of law on the part of the new administrative tribunal, however elementary and however serious for the individual concerned, would have been open to correction on appeal unless referred by the tribunal itself, and no failure of due process in deciding a claim – for example, a failure to notify a claimant of a hearing – would have been open to judicial review. One of the many casualties would have been the case-law developed in the UK’s appellate courts under the 1951 Geneva Convention on refugees, which enjoys high international standing and is regularly referred to in other countries’ jurisprudence. Lord Woolf asked: ‘What areas of government decision-making would be next to be removed from the scrutiny of the courts? What is the use of courts if you cannot access them?’ He warned that pressing on with the clause would catalyse the case for a written constitution; but there were also more immediate and fundamental questions.

First, in what solid sense could such a measure, destructive as it was of the rule of law, be stigmatised as unconstitutional? Only, in orthodox theory at least, if it ran counter to a prior and superior instrument by which Parliament itself was bound, and this country has none. Did the unwritten rules of a democracy under the rule of law then have no reality at all? At least one prominent modern judge, Sir John Laws, has argued that there are higher-order laws which even a sovereign legislature cannot break. In a sense this is theological: it is true for those who believe it to be true, but it can be neither verified nor falsified. What I think is historically verifiable is that Parliamentary sovereignty itself is not a given but is part of a historic compromise by which the counterpart of the common law’s deference to Parliament as the single legislative power has been Parliament’s recognition of the courts as the single adjudicative power. I have argued – unoriginally – in the past that the legislative and judicial arms of the state are each sovereign in their proper spheres, whereas the executive is answerable politically to Parliament and legally to the courts. This is why, for example, the courts may not call Parliamentary proceedings in question, and why Parliament will not call judicial decisions in question. It is also why, while Parliament may authoritatively decide what law the courts are to apply and how they are to go about applying it, its authority may intelligibly be said to be conditional on the courts’ continued performance of their constitutional role of determining and enforcing legality. Laws without courts are as mischievous as courts without laws.

It is this bipolar sovereignty and the associated mutuality of respect, perhaps the most fundamental continuing outcome of the Civil War and the settlement of 1689, that sets one of the parameters of constitutionality for both the courts and the legislature. It is said that while Chief Justice Sir John Holt was hearing the groundbreaking electoral corruption case of Ashby v. White in 1701, the Speaker’s retinue arrived in his court to tell him he was in contempt of Parliament and must stop. Holt is said to have told them that if they did not leave they would be jailed for contempt of court ‘had you the whole House of Commons in your belly’. A century earlier, Holt would have been removed from office and disgraced. Three centuries later, the stand-off still holds.

If this is right, there was more than piety in the assertion that the ouster clause, were it to become law, would be unconstitutional. But the question remained: what then? Say the clause becomes law. The following week a notice of appeal is lodged by a claimant against an adverse decision of the new asylum tribunal: it asserts an elementary error of law, and it argues that the appeal court still has jurisdiction because the ouster clause in the new act, being unconstitutional, is of no effect. The court, having heard submissions on both sides, accepts the argument. It allows the appeal and holds that the appellant is entitled to asylum. The home secretary, having been advised that the court’s decision is of no legal effect, puts him on the next plane. Proceedings are issued against the home secretary for contempt of court. And then? There would be no winner, no famous victory even, in such a confrontation. Even so, as a New Zealand colleague who watched the advance and demise of the ouster clause remarked, it was not necessarily a bad thing that it had gone as far as it had: the government had realised that there were limits to what it could properly ask Parliament to do; constitutional lawyers had realised that the limits were less secure than they had thought, and the sky still seemed to be in place.

[*] Constitutions of Europe: Texts Collected by the Council of Europe Venice Commission, edited by the Council of Europe (Brill, 2 vols, 1998 pp., €295, April, 90 04 13932 x).