A NEW BALANCE OF POWER?

Transcription

1 Presented by Blackstone Chambers in association with Liberty Focus on Public Law and Human Rights 18 th November 2005 A NEW BALANCE OF POWER? MICHAEL J. BELOFF QC 1 Blackstone Chambers, Blackstone House, Temple, London EC4Y 9BW Tel: +44(0) Fax: +44(0) clerks@blacksonechambers.com 1 MA (Oxon) FRS FInst CPD Fass, President of Trinity College, Oxford, Master of the Bench of Grays Inn, Senior Ordinary Appeals Judge of Jersey and Guernsey, Deputy Chairman of Information Tribunal, Hon Fellow Institute of Advanced Legal Studies of Blackstone Chambers, The Temple.

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3 1. The very question; should judges defer to politicians would have been meaningless for a large part of the twentieth century. Lord Devlin said, in a passage I never knowingly refrain from quoting. The common law has now, I think, no longer the strength to provide any satisfactory solution to the problem of keeping the executive, with all the powers which under modern conditions are needed for the efficient conduct of the realm, under proper control. The responsibility for that now rests with Parliament Whether judges should defer to politicians is an issue which can be described in diagrammatic terms. Is the relationship a vertical or is it a horizontal one? Are there as Sir Stephen Sedley put it with his usual elegance a bi polar sovereignty 3 or are judges merely a colony of the politicians empire? 3. Firstly, the common law is exclusively judicial territory the creation of the judges and no one else. But statute law is the creation of the legislation in which the judiciary save presently for the Law Lords as legislators have no role at all. 4. Secondly, supremacy of legislation is not, save in the field of overriding community law, or ought not to be in doubt. 5. Lord Millett rightly said in Ghaidan v- Godwin-Mendoza 4 :- The doctrine of Parliamentary Sovereignty is not sacrosanct but any change in a fundamental constitutional principle should be the consequence of deliberate legislative action and not `judicial activism, however well meaning. However, the heresy continues to haunt our law. In his concurring speech in R (Jackson & Others) v Attorney General (TLR ) the challenge to the Hunting Act 2004, Lord Steyn said: CLP 1 at p.84 3 (Public Law 1995, 376) AC 557 at p. The classic account given by Dicey of Parliamentary supremacy, pure and absolute as it was, could now be seen as out of place in the modern United Kingdom. Nevertheless the supremacy of Parliament was still the general principle of our constitution. It was a construct of the common law. The judges created that principle. If that was so it ws not unthinkable that circumstances might arise where the Courts might have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review of the ordinary role of the Courts, the Appellate Committee of the House of Lords or a new Supreme Court might have to consider whether that was a

4 constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons could not abolish. 6. With the greatest of respect, I doubt that Lord Steyn would be followed down that seductive path by his erstwhile judicial brothers and sisters. It is not simply that one night legitimately ask; what if the judges were so bold as to override an Act of Parliament without the support of community law rather than to recall the softer option presented by the Human Rights Act 1998 declare it incompatible with scheduled fundamental rights, would take any notice? 7. But the issue is more important than that. At the start of the 17 th century the Monarch claimed power to dispense with and suspend with the Parliamentary law. As Lord Templeman put it in M v Home Office the proposition that the executive obey the law as a matter of grace, and not as a matter of necessity, (is) a proposition that would reverse the result of the civil war. But in the early seventeenth century Chief Justice Coke had also said that a Court could declare an Act of Parliament void if it was against common right or reason 6. For a judge to echo those words today would be in Wade s pungent phrase to blaspheme against the doctrine of Parliamentary sovereignty It is, of course, not inconsistent with democracy to make judges the final arbiters of the validity of legislation. That is the choice made in the USA, admittedly by the guidance of Marshall CJ but accepted as a given thereafter. But it is not a choice that the citizenry of the United Kingdom have yet made via their elected organs, and it is not, I suggest in company with Lord Millett, for the judges to make that choice for them, although the Judges can truthfully say that it is the Human Rights Act 1998, a legislative instrument, which has not only entitled by obliged them to give effect in the domestic sphere to Convention Rights. 9. Thirdly, and on the assumption that Parliamentary sovereignty remains, with the exceptions mentioned intact, and in consequence the issue is not one of jurisdiction. If a matter is justiciable, then judges have power to adjudicate upon it:- As Sir John Laws has written 8 :- We now possess a jurisdiction in which every public body is in principle subject to the supervision of the court as regards every decision it makes. The only true exception in the present state of the law, is the Queen in Parliament, exercising the function of enacting primary legislation, and this exception is now constrained so as not to apply where the legislation on its face is credibly asserted to be inconsistent with the law of the European Union. All other exceptions are apparent, not really. 5 AC Dr Bonhams Case ( Co. rep. 113b at p.118. See now: Lord Russell Public Law 2005 p Wade and Forsyth Administrative Law 9 th ed p Public Law 1995, Law and Democracy at p.73

5 10. Nor fourthly, is it truly a matter of justiciability. The examples given by Sir John Laws were culled from the speech of Lord Roskill in the GCHQ 9 case describing cases, of which in the eminent Law Lord s view, their nature and subject matter are such as not to be amenable to the judicial powers. But in theory there could be evidence, arguments and adjudication even on such matters as the disposition of armed forces or the grant of honours. 11. We are truly in the area of discretion as Sir William Wade has observed (possibly posthumously) the thought may truly be that of Christopher Forsyth the term `deference has become a symbol... and a counterweight to the increasingly strict doctrines of judicial review Judges, like other agencies of government, have to make choices. Where executive organs purport to exercise powers, it is necessary to consider whether they indeed enjoy the powers they purport to exercise. But once that identification of primary jurisdiction is established, there is scope for different views as to legality in the secondary sense as to whether powers enjoyed are being deployed for proper purposes as to fairness that is to say what implied procedural reconditions needed to be satisfied, and certainly as to rationality or its little proportionality. The deference issue comes down to this: in what, if any areas, will the Courts pay more respect to the executive choice and be less inclined to substitute their own bearing always in mind that judicial review is not despite the development of new tools of review a mechanism of pure appeal. The same can be said mutatis mutandis - where legislative decisions are tested against convention rights. 13. Deference has proved itself to be an elastic concept, appearing in a number of different guises such as margin discretion, latitude, and discretionary area of judgment. It is distinct from the concept of margin of appreciation which the Strasbourg Court gives national governments, although it has at its core, the same notion that the body whose decisions are under scrutiny has an advantage in terms of knowledge of the issue than the reviewing Court. And it is more nuanced than the truism that judicial viewers distinct from appeal, and that the Court should not simply substitute their view of the merit for the executives. 14. The first mention of deference, as means of defining the relationship between the judiciary and the executive in the context of Convention Rights although the issue does not arise uniquely where convention rights are involved - came in R v Director of Public Prosecutions ex p. Kebilene and others 11. Lord Hope of Craighead stated: In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on AC 374 at p Administrative Law 9th ed p [2000] 2 AC 326 at p.381 B-D. The concept is well known in the jurisprudence of the highest courts of law Australia, Canada, New Zealand and the United States of America Steyn op. cit p.345.

6 democratic grounds, to be considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention... It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection. But even where the right is stated in terms which are unqualified the courts will need to bear in mind the jurisprudence of the European Court which recognises that due account should be taken of the special nature of terrorist crime and the threat which it poses to a democratic society: Murray v. United Kingdom (1994) 19 E.H.R.R. 193, para This statement advocates the flexible approach the courts should take to the question of deference. Even where the right in question is unqualified, the judiciary will always give the executive some space without, of course, abdicating its judicial responsibility. 16. The flexible nature of deference obliged the courts to try to categorise the different degrees of deference to be accorded to the executive and legislature when reviewing both decisions and legislation respectively. The subject matter of the litigation is self evidently crucial. 17. In International Transport Roth GmbH v Secretary of State for the Home Department 12, Laws LJ set out a list of guiding principles under which the courts will defer to the other branches of government: (1) Greater deference will be paid to an Act of Parliament than to a decision of the executive or a subordinate measure 13. (2) Greater deference will be shown where the Convention right itself requires the striking of a balance, and much less so where the right is unqualified 14. (3) Greater deference will be due to the democratic powers where the subject matter in hand is peculiarly within their constitutional responsibility, and less when it lies more particularly within the constitutional responsibility of the courts 15. (4) Greater or lesser deference will be due according to whether the subject matter lies more readily within the actual or potential expertise of the democratic powers or the courts [2002] EWCA Civ 158 at para 83. See also Poplar v Donoghue [2001] 3 WLR 183 at [69], where Lord Woolf stated that in our judgment, the courts must treat the decisions of Parliament as to what is in the public interest with particular deference. 13 at para at para at para 85

7 18. National security immigration control and public order have traditionally historically been areas in which the courts have given a significant degree of latitude is the executive. 19. In Secretary of State for the Home Department v Rehman 17 the House of Lords held that whilst issues of national security did not fall beyond the competence of the courts, the courts would give great weight to the executive s assessment of what was capable of being regarded as a threat to national security. Lord Hoffmann justified this both on the basis of expertise and democratic accountability. His decision in the Belmarsh case seems to come from a particular different angle from that in Rehman. 20. In R (Farrakhan) v Secretary of State for the Home Department [2002] EWCA Civ 606 [2002] QB 1391, the Court of Appeal overturned a decision of Turner J, who had quashed a decision of the Secretary of State refusing the controversial Nation of Islam leader, Louis Farrakhan, admission into the United Kingdom on the perceived threat to community relations and public order that such admission would pose. The Court of Appeal held that this was a case in which it would be appropriate to accord the Secretary of State a particularly wide margin of discretion. 21. Their justification for such a wide degree of deference was triggered by a number of considerations. (1) The case concerned an immigration decision; where the legislative scheme required the court to confer on a wide margin of discretion to the Minister. (2) The decision was a personal decision of the Secretary of State himself. (3) The Secretary of State was far better placed to reach an informed decision than the court. (4) The Secretary of State was democratically accountable for the decision In the Divisional Court decision of R (Gillan and Quinton) v Metropolitan Police Commissioner [2003] EWHC 2545 (Admin). The challenge concerned the legality of a blanket authorisation under s.44 of the Terrorism Act 2000, which allowed the police to stop and search persons for the purpose of preventing acts of terrorism. In the Divisional Court in dismissing the applications, Brooke LJ stated (at para. [35]): 16 at para. [87] 17 [p2001] UKHL 47 [2003] 1 AC The Court of Appeal held that these conclusions gained support from the decision in Rehman (above)

8 The assessment of risk to the public safety and to national security and the formulation of measures to safeguard the public and national security are primarily for the Government and Parliament on grounds of public legitimacy... A senior police officer with major operational responsibility has made the authorisation, and the Secretary of State who has wide sources of relevant expertise available to him and is answerable to Parliament, has agreed it. The Divisional Court ruling was upheld by the Court of Appeal [2004] EWCA Civ 1067, while acknowledging that the court retained a supervisory role, and that the assessment of proportionality ultimately rested with the court, the Court of Appeal it reiterated that it would not usually interfere with the authorities assessment of risk and the action that should be taken to counter the risk 19. Even in the area of national security there are cases in which the courts will limit the deference to be granted to the executive e.g. where the right to life is concerned. See Simon Brown LJ in R v Home Secretary ex p. Turgut. 23. However in R v Bloggs 20 where a prisoner asserted his rights to life under the Convention to challenge his removal from a `protected witness unit where he was held after assisting the Police in discovering drug-smuggling by his fellow-criminals, the Court of Appeal decided in reliance on the concept of deference that the Police and prison service were generally better placed than the Court in assessing the risk to the Claimant s life. 24. In R (Pro-Life Alliance) v British Broadcasting Corporation 21, which concerned the ban on a party political broadcast which would have featured the destruction, Lord Hoffmann resorted again to principle: 75. In a society based upon the rule of law and the separation of powers, it is necessary to decide which branch of government has in any particular instance the decision-making power and what the legal limits of the power are. That is a question of law and must therefore be decided by the courts. 76. This means the courts themselves often have to decide the limits of their own decision-making power. That is inevitable. But it does not mean that their allocation of decision-making power to the other branches of government is a matter of courtesy or deference. The principles upon which decision-making powers are allocated are principles of law. The courts are the independent branch of government and the legislature and executive are, directly and indirectly respectively, the elected branches of government. 19 (at para [33]) 20 (R v - Bloggs) WLR 2724, Auld LJ para [2003] UKHL 23 [2004] 1 AC 185

9 Independence makes the courts more suited to deciding some kinds of questions and being elected makes the legislature or executive more suited to deciding others. The allocation of these decision-making responsibilities is based upon recognised principles. The principle that the independence of the courts is necessary for a proper decision of disputed legal rights or claims of violation of human rights is a legal principle. It is reflected in article 6 of the Convention. On the other hand, the principle that majority approval is necessary for a proper decision on policy or allocation of resources is also a legal principle. Likewise, when a court decides that a decision is within the proper competence of the legislature or executive, it is not showing deference. It is deciding the law. 25. R (Carson and Reynolds) v Secretary of State for Work and Pensions 22, after quoting par. [75] of Lord Hoffmann s speech, Laws LJ stated: I hope it is consistent with this exposition to say that the powers of the court and the powers of the other branches of government, if they do not overlap, at least may operate in the same field; they are not marked off by walls without windows; they are in constellation with each other, so that what government may settle as policy may be qualified by the constraint of law, settled by the judges. The teaching which Lord Hoffmann s observation provides, if I may say so, is that in any particular area the decision-making power of this or that branch of government may be greater or smaller, and where the power is possessed by the legislature or executive, the role of the courts to constrain its exercise may correspondingly be smaller or greater. In the field of what may be called macro-economic policy, certainly including the distribution of public funds upon retirement pensions, the decision-making power of the elected arms of government is all but as its greatest, and the constraining role of the courts, absent a florid violation by government of established legal principles, is correspondingly modest. I conceive this approach to be wholly in line with our responsibilities under the Human Rights Act As Lord Hoffman put it more succinctly when Carson went unsuccessfully to the House of Lords In deciding what expatriate pensioners should be paid, Parliament must be controlled to take into account competing claim on public funds. 27. Lord Steyn objects to Lord Hoffmann s position in Rehman insofar as based on the separation of powers 24, but Lord Steyn also takes issue with Lord Hoffman s position that the principle that majority approval is necessary for a proper decision on policy or allocation of resources is also a legal principle [Pro Life Alliance at 252 (76). In my 22 [2003] EWHC 978 (Admin) [2003] 3 All ER The appeal in Carson WLR at p Although he would accept that the allocation of scare resources for what may be important but experimental surgery was another example of when the executive is better qualified to decide the matter 24, Lord Steyn op cit

10 respectful view he exaggerates the differences between these two giants of jurisprudence. For the result is the same, even if the route is different. 28. R (Bloggs 61) v Secretary of State for the Home Department [2003] EWCA Civ 686 [2003] 1 WLR 2724, Auld LJ declined to chose between the two analyses saying only: Whichever is the more appropriate formulation of the test, the law in this area, as Lord Walker indicated at the end of his speech in Prolife, is still developing, and the trek away from Wednesbury, particularly where the right to life is concerned, may have further to go Keene LJ put the matter still more broadly: It may therefore in most cases make little difference whether one describes the court s approach as one of deference or simply as one of attaching weight to the judgment reached by such bodies: the end result would be the same Both Carson and Bloggs, however articulated, appear to be decisions which rely on democratic accountability and institutional expertise, respectively, as the factors which determine the degree of deference to be accorded to the executive. 31. In Huang and others v Secretary of State for the Home Department 27, the Court of Appeal was asked to determine the nature of an immigration adjudicator s jurisdiction in a statutory appeal in which an appellant claims that on the facts his removal would be disproportionate under Art. 8 and therefore unlawful. The question in issue was formulated in the following terms: Is the adjudicator s assessment of proportionality limited to a review of the Secretary of State s decision is the decision within the range of reasonable assessments of proportionality? or must the adjudicator decide for himself, on the merits, whether the removal would be proportionate or not? The Court of Appeal in Huang held that the adjudicator has (save for in a small minority of cases) no role to play in passing judgment upon, in this case, government immigration policy. Laws LJ stated 29 : 25 at para 26 at para [2005] EWCA Civ 105 (2005) The Times, 16 March 28 at para 4 29 at para 82

11 The adjudicator is not required to pass upon any aspect of government policy. The principle of law by which respect for the democracy requires a margin of discretion to be accorded to the democratic decision maker primarily applies where the subject of the decision is the formation of policy. although he added (seemingly inconsistently) If the policy perpetrates an apparent violation of a convention right so that the Government must demonstrate proportionate... the court will require a substantial reasoned justification of the policy His reasoning was predicated on the fact that the Immigration Rules were the embodiment of the balance struck between the public interest and private rights, with Parliament s approval. In light of this, an appellant whose case fell outside the Rules, but relied on Art. 8, would only be able to succeed in truly exceptional circumstances. As a result, the adjudicator was not required to give due deference to the Government s policy of immigration control he or she in fact had no choice but to do it. Laws LJ stated: [55] But the adjudication of particular instances, in which the adjudicator is not in the least degree called upon to pass judgment on government policy, belongs as it seems to us to an altogether different category. The principle by which a margin of discretion is to be accorded to the primary decision maker out of respect for the democratic claims of elected government has no application. In these appeals, the adjudicators were not called on to decide whether any policy was proportionate to its legitimate purpose, nor, therefore, to pass judgment on government policy at all. Accordingly they were not required to enter into any field which distinctly lies within the constitutional responsibility of government... [56]... In our judgment his duty, when faced with an Article 8 case where the would-be immigrant has no claim under the Rules, is and is only to see whether an exceptional case has been made out such that the requirement of proportionality requires a departure from the relevant Rule in the particular circumstances. If that is right, the importance of maintaining immigration control is a prior axiom of the debate before him. It is not at all the subject of that debate. There is no basis upon which he should defer to the Secretary of State s judgment of the proportionality issue in the individual case unless it were somehow an open question what weight should be given to the policy on the one hand, and what weight should be given to the Article 8 right on the other. In that case, no doubt, the adjudicator would have to address their relative importance. If he had to do that, we apprehend that he would be obliged to accord a considerable degree of deference to the Secretary of State s view as to how the balance should be struck. But that is not the position. The adjudicator is not required to 30 at para 54

12 address the relative importance of the public policy and the individual right. 34. One may question Sir John s ascription of untouchable status to the immigration which seems bizarre when even unambiguous primary legislation is not immune from close judicial scrutiny under the HRA I note that (by contrast) in R v Secretary of State for the Home Department ex p. Arman Ali 31 Collins J stated it is not until 2 October 2000, possible to strike down a Rule for non-compliance with the Convention. Incidentally, I have no doubt that the Rules will have to be reconsidered to ensure that the y comply with the Human Rights Act I return to the most scrutinised case of recent times. In A and others v Secretary of State for the Home Department 32 as is notorious the House of Lords held that the regime of indefinite detention without trial of suspected international terrorists under the Anti-Terrorism, Crime and Security Act 2001 was unlawful. 36. On the first issue is whether the Secretary of State was justified in asserting that there was a public emergency threatening the life of the nation within the meaning of Art. 15 of the Convention. Lord Bingham stated 33 : 31 [2000] INLR 89 at 98D AC 33 at para 29 I would accept that great weight should be given to the judgment of the Home Secretary, his colleagues and Parliament on this question, because they were called on to exercise a pre-eminently political judgment. It involved making a factual prediction of what various people around the world might or might not do, and when (if at all) they might do it, and what the consequences might be if they did... As will become apparent, I do not accept the full breadth of the Attorney General s argument on what is generally called the deference owed by the courts to the political authorities. It is perhaps preferable to approach this question as one of demarcation of functions or what Liberty in its written case called relative institutional competence. 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. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. 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. The present question seems to me to be very much at the political end of the spectrum: see Secretary of State for the Home

13 Department v Rehman [2001] UKHL 47, [2003] 1 AC 153, para 62, per Lord Hoffmann But on the second issue, whether the response is that conclusion of a the Secretary of State emergency was proportional, Lord Bingham said 34 : Conclusion It follows from this analysis that the appellants are in my opinion entitled to invite the courts to review, on proportionality grounds, the Derogation Order and the compatibility with the Convention of section 23 and the courts are not effectively precluded by any doctrine of deference from scrutinising the issues raised. It also follows that I do not accept the full breadth of the Attorney General s submissions. I do not in particular accept the distinction which he drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true, as pointed out in para 29 above, that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right, has required courts (in section 2) to take account of relevant Strasbourg jurisprudence, has (in section 3) required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues. The effect is not, of course, to override the sovereign legislative authority of the Queen in Parliament, since if primary legislation is declared to be incompatible the validity of the legislation is unaffected (section 4(6)) and the remedy lies with the appropriate minister (section 10), who is answerable to Parliament. The 1998 Act gives the courts a very specific, wholly democratic, mandate Lord Hoffman said I don not think it s overtones of servility or perhaps gracious concession are appropriate 35. I am content with a word which emphasised that unless Parliament has itself otherwise decreed, the judge s role in integration and application of statute is indeed a subordinate one. 39. It is difficult, in many respects, to distil the jurisprudence on deference into a clear set of principles. Deference remains a highly impressionistic concept which is not open to legally scientific analysis. The only conclusion that can be drawn is an extremely broad one, namely that the degree of deference to be accorded to the executive and Parliament is entirely dependent upon the context of any given decision or measure, and will be 34 at para R (on the Appointment of Pro Life Alliance) v BBC AC 185 at para 25

14 informed by a complex set of considerations pertaining to each particular case. Judging is an art, not a science. In the law, as Lord Steyn said in Daly context is everything.