Writing a reply

The foregoing responses — one by a scholar-participant in the deliberations of the Upper House of Britain’s Parliament, and four by distinguished judges in the common-law constitutional tradition — all share the Lecture’s aim: to evoke that tradition (initially in its formative English crystallization and then in some recent manifestations or, as I think, misadventures); and to engage, restate, and in part rebalance that tradition. (Severally and cumulatively, they also remind us that along with the similarities between the common law tradition in New Zealand, Australia, Canada and the United Kingdom, there are significant variations, and a variety of experiences to inform our reflections.) And in generous measure the responses pursue the aims of the Lecture in ways complementary to it. Accepting that extensive complementarity and enhancement gratefully, I shall focus these concluding reflections on the responses’ main objections to the Lecture; most though not all of them are to be found in Justice Glazebrook’s challenging essay; and each can conveniently be framed as a doubt or interrogatory.

Is the lecture about judicial overreach?

Some parts of it are, and almost all its 10 theses touch on the contours of judicial responsibility. But it is in relation to thesis 3 that Sir Patrick Elias’s response says:

it is difficult to say that their Lordships in Haughton were recklessly stepping into the legislative arena where they had no right to be…

and that

it would not be just to say that the five Law Lords who took that decision were cavalier in their approach to the judicial function… [or] seeking to act like legislators… or usurping the legislative role.

Those comments are, I think, entirely right.  The Lecture’s discussion of Haughton, and of the related cases about attempts and conspiracies to do the impossible, was not in order to lay a charge of judicial trespass, overreach or usurpation, but to explore some typical, structural causes why courts, even the best, can and do go wrong even when they are working entirely on their own most familiar turf: common law (civil or criminal) in a field not yet regulated or fully regulated by statute. The thesis being illustrated was:

3 “Hard cases make bad law” means “Hard cases [tend to] make bad law” qua law for the future. Judicial efforts to reform even the common law are often unproductive or counter-productive. “The law is an ass” is sometimes a consequence of judges’ thinking their predecessors’ law an ass.

And the Lecture’s discussion of the previous thesis[1] accepted that judicial efforts to reform the common law may well be perfectly legitimate:

There are cases when a court, especially one that is hierarchically supreme and thus not bound to follow the rulings of higher courts, can judge it has the duty now to depart from an interpretation or view of the part of our law in dispute between the parties because, though that interpretation or view has been judicially approved and is what legal advisers would now and previously convey to their clients, it is nonetheless out of line with principles, policies and standards acknowledged (now, and when the dispute arose) in comparable parts of our law — so out of line that it ought now to be declared to have been a mistaken view, and set aside in favour of a rule that, though new in relation to the subject-matter and area of law directly in issue between the parties, is nevertheless not a novelty or act of legislation (taking our law as a whole), and can fairly be applied to the parties and dispute before the court.

So, as Sir Patrick Elias notes, the Lecture firmly approved of the Law Lords’ decision in Kleinwort Benson to depart from, alter, abrogate what had for 200 years been regarded as a rule of common law. For present purposes it does not matter that he and I read the architecture of the decision differently.[2]

Are the Courts the guardians of the constitution?[3]

Justice Glazebrook writes:

All courts, and in particular final courts of appeal, have an important role as one of the guardians of the constitution, even in systems like in New Zealand where there is no formal supreme written constitution and no power to strike down legislation.

She immediately adds, in a footnote: “I am not suggesting that the courts are the only guardians of the constitution or even that they are the most important.” This addition, too rarely made by those who repeat the phrase without her cautionary “one of”, is important and welcome.[4]

Is it constitutionally sound to allow Courts to declare Acts of Parliament incompatible with human rights on condition that Parliament may ignore or override such declarations?

The question as I have phrased it assumes what Justice Brown’s response at one point may seem to deny: that a constitutional democracy can exist without judicial power to declare procedurally authentic statutes invalid and of no effect. My question also leaves to one side those political communities which have open-eyed empowered the courts to simply invalidate Acts of Parliament judged to violate constitutionally defined rights, as Justice Brown quite rightly recalls is the situation since 1982 in Canada.[5]

Justice Glazebrook writes:

I do not consider it risks weakening either institution that Parliament may decide to maintain legislation courts have said is inconsistent with our Bill of Rights or that Parliament may decide to override a court decision for the future, as long as mutual respect is maintained and the courts’ contribution is taken into account in any decision.

Very many will agree with her (though in the UK many will want to add that it is illegitimate, albeit lawful, for Parliament to do so). After all, her assessment of the risks is one that is shared both by those who enacted the Human Rights Act 1998 (UK) and by those who propose that the 1998 Act (and the ECHR underlying it) be replaced by a British Bill of Rights Act.

Against this weight of opinion, or numbers, I continue to think the assessment mistaken, and indeed very implausible. How can it be at all probable that mutual respect between legislature and courts, or public respect for both, will remain unimpaired if the courts are from time to time solemnly declaring that legislation violates our fundamental law and is inconsistent with Human Rights but the legislature, having considered such opinions, always or sometimes rejects them?

I note with interest Justice Glazebrook’s report that — 25 years after the Bill of Rights Act 1990 (NZ) — “A declaration of inconsistency was made for the first time by the High Court in Taylor v Attorney-General [2015] NZHC 1706; [2015] 3 NZLR 791”, and that it was about prisoner voting restrictions. That case was not included in my 2015 survey and critique[6] of the prisoner-voting judicial decisions which, around the world, have set the judges against their legislatures. And it seems to me a judgment and decision just as unpersuasive a usurpation of legislative function as the others — in its reasoning just as radically inferior to the reasoning on display in typical legislative deliberations about where and why to draw the line in the disenfranchisement of serious criminals. In these cases it is the courts that deprive themselves of the respect of very many reasonable citizens and elected representatives. But in wounding themselves, the courts surely also wound the legislatures that they solemnly (and without reasonable justification) accuse of violating human rights (and our own law).

A more subtle and penetrating response to Justice Glazebrook’s point about mutual respect between courts and legislature being unthreatened by judicial declarations and court overrides may be found in thinking through the implications of Justice Brown’s particularly important concluding reflections. There he points to the fact that, as Canadian Charter adjudication makes clear, the courts tend to be willing to override even serious legislative attempts to uphold whole complexes of partly competing rights, setting such attempts aside in favour of upholding some single individual right, especially an autonomy right, that has been presented forcefully to the courts by a (class of) litigant(s).

Don’t courts rightly consider consequences, and don’t legislatures rightly consider both the past and the present?

Baroness O’Neill focuses intently on the “past, present, future” meme that I correlated with the division of government powers and responsibilities. Justice Glazebrook, too, considers that the Lecture oversimplifies:

Professor Finnis’ characterisation of the role of the Executive as being concerned with the present ignores the role of the Executive in the legislative process and its general policy making functions. As to Parliament, it must consider the past when making decisions about the future. It also can and does legislate with retrospective effect (albeit in limited circumstances).

These calls for nuance are quite justified.  I took the meme from the lecture title proposed to me by the Gray’s Inn Lecture’s organisers (who, I suppose, were picking up from the title of a well-known and notable expression of the imperial judiciary’s self-interpretation, a 2007 lecture[7] by the ECtHR’s then President, Judge Wildhaber). As the Lecture puts it in introducing the meme: “’Past, present and future’ captures a good deal of the truth, I think, about the distinctions between judicial, executive and legislative powers…” — a good deal but by far not all.

In differentiating the responsibilities of legislators from those of judges, the Lecture says that legislators “do not (and cannot) make the claim that bearers of judicial power must at least profess: that this decision of ours about the law merely or essentially conveys (transmits into the present and the future) positions that have already been settled by our law…” (emphases adjusted).  It goes without saying that legislators should be aware of the established legal position and established legal rights they propose to amend or replace. And it is often appropriate for judges to give some consideration to immediate and longer-term impacts of their decisions on the parties presently before them, on other parties presently in like case, and on all who in the future will be affected by their decision.

Isn’t it sometimes, or often, necessary for the courts to develop the law?

Justice Glazebrook states the standard view. Cases can arise for judicial decision where “there is no settled law that applies to the facts”:

Sometimes in such cases it is a matter of assessing which of two lines of authority best apply to the facts. Sometimes, however, it is necessary to develop the law in order to decide the case.

The point is so standard that no argumentation or example is supplied to illustrate it, and few readers are likely to have felt in need of any. But, come to think of it, how may one exemplify circumstances where there is no applicable settled law?  How often, if ever, is it truly necessary to “develop” the law in order to decide the case?  True, the application of the “undeveloped” law to the case before the court may be unattractive or even in some respects unjust. But that fact — though obviously an argument in favour of development — does not render the case undecidable, or necessitate development, i.e. not merely interpretative clarification but change in the law, by the court. Our law’s well-known tie-breaking presumptions and doctrinal devices only seem to fail — only seem to create a gap necessitating legal change — in cases of sheer contradiction between statutory provisions (or between the rationes decidendi of decisions of equal precedential authority).

A reader who agrees with this last point may notice that Justice Glazebrook, a few pages later (when illustrating her undeniable and not too distantly related point that legislatures can and do squander their presumptive institutional superiority over courts as agents of legal change) has adduced an example of sheer contradiction between statutory provisions:

Sometimes there can be contradictory policies and provisions within the one statute. See, for example, New Zealand Fire Service Commission v Insurance Brokers of New Zealand Association [2015] NZSC 59.

But finding contradictory provisions is harder than might be supposed. The New Zealand Fire Service case falls, I suggest, well short of exemplifying statutory contradiction. The five judges of the Supreme Court of New Zealand (including Justice Glazebrook) rejected the interpretation of the inter-relationship of two sub-clauses of a single section in a single statute[8] that had been adopted by the three judges of the Court of Appeal[9] and the High Court judge[10] below. There is much to be said for each of the competing ways of reconciling the two sub-clauses, but neither of the ways could be said to be logically necessary and, more important for present purposes, neither set of judges contended, or should have contended, that the other set’s reading was self-contradictory or incoherent or left “contradictory provisions within the one statute”.  All eight appellate judges agreed that the statutory section needed legislative amendment — to avoid (I would say) not contradiction but tensions and ineptitudes falling well short of logical contradiction. And those tensions also fell short of “contradiction between policy and provision”, i.e. between end and legal means. Indeed, even that looser sort of contradiction can rarely be convincingly demonstrated, once it is recognized that provisions usually serve more than one policy — serve a set of social ends rather than just one end, and respect or set in place side-constraints as well as social ends; and that it is utterly normal for a coherent and reasonable person’s ends and policies to be partly in tension with each other.

Dyson Heydon’s illuminating account of the Horncastle litigation illustrates the danger the courts incur as soon as they seek to expound the law beyond the bright circle of light shone by the arguments of opposing counsel in strongly contested litigation. The danger is yet greater when the judicial effort is not simply to expound it but to pursue some other purpose besides applying it, for example the purpose (as Heydon’s account makes clear) of persuasion, or again the purpose of developing the law so as to answer old questions in a new way.

Aren’t the courts, even absent a Bill or Charter of Rights, bound to have regard to internationally recognised rights?

Justice Glazebrook’s response says —

…even if the Bill of Rights in New Zealand did not exist, courts would still be required to decide whether internationally recognised human rights have been breached, which necessarily includes consideration of the extent of such rights. There is a principle of interpretation of legislation that, unless this is made explicit, Parliament did not intend to legislate contrary to international obligations, including human rights obligations [footnote omitted]. Closely related to this is the principle that a wide discretion conferred on the Executive should be exercised consistently with such obligations. Rights are also protected in New Zealand through the principle of legality [fn: … It is after all the Executive that entered into such obligations. It does not seem unreasonable to expect it to abide by them…]. In addition, international human rights obligations have been used by the courts to develop the common law [the fn here refers to NZ authority stating that … there is increasing recognition that the common law should develop consistently with international treaties to which New Zealand is a party … and … this is an international trend…].

The first sentence of this passage seems to me open to question. For why should we think that, absent human rights legislation, “courts would still be required to decide” in line with international law? As Justice Glazebrook elsewhere accepts,[11] surely rightly, the requirements and currently accepted rules set out in the rest of the passage just quoted have been introduced, or given a new force and edge, by the courts themselves, during the last twenty or thirty years. These developments are prima facie of precisely the kind that the Lecture seeks to put in question. Are they not perhaps, in whole or part, manifestations of judicial overreach? And does not the generalised subjection of New Zealand law to “international obligations” confer on the executive an unconstitutional power to change citizens’ rights by prerogative without parliamentary authorisation? Is this progress or decadence? If judges can just change what was settled law in 1981, why shouldn’t judges in 2018 just as thoughtfully change back to the position in 1981?  The Lecture begins to make the case that they should consider doing so.[12]

Isn’t “living instrument/tree” interpretation just “ambulatory” application as always practised by courts and often authorised by legislatures?

Justice Glazebrook’s response argues:

In New Zealand the ambulatory approach to the interpretation of legislation is required by s.6 of the Interpretation Act 1999, which provides that enactments apply to circumstances as they arise. This applies to all statutes, including our Bill of Rights. I have difficulty in understanding how or why this exhortation of Parliament on how to interpret statutes should encompass changed physical circumstances but not changes in societal values, such as changed attitudes to the place of women and minorities or, at a more mundane level, modern attitudes to drink driving. …. in light of s.6 …, New Zealand courts are not constituting themselves roving law commissions when using an ambulatory approach to interpretation. They are respecting Parliamentary sovereignty by applying a principle of interpretation laid down by Parliament.

This is an important and interesting challenge. I think it can be met. The provision she cites, Interpretation Act 1999 (NZ), s. 6 (“An enactment applies to circumstances as they arise”), is related, as a note on the authorised print suggests, to the Acts Interpretation Act 1924 (NZ), s.5(d):

(d) [i] The law shall be considered as always speaking, and [ii] whenever any matter or thing is expressed in the present tense the same shall be applied to the circumstances as they arise, so that [iii] effect may be given to each Act and every part thereof according to its spirit, true intent, and meaning.

(The bracketed numbers are mine.) That 1924 provision in turn goes back, via an Act of 1908, to New Zealand’s impressive Interpretation Act 1888 (No. 15), s. 5(3), which was in identical terms.[13] The fragment surviving into the 1999 Act, on which Justice Glazebrook’s challenge is based, is in element [ii]. Now, whatever the reach of elements [i] and [iii] considered in the abstract or in their place in s. 5(3) 1888 or s. 5(d) 1924,[14] it is clear that element [ii] concerned a limited, technical issue: the statutory present tense includes the future (imperative and quasi-imperative) tense.  And notice that it says, in 1999 as in 1888, “applies to”, not “in”, “the circumstances”, not merely “circumstances” — it plainly means and refers, I suggest, to facts and events of the kind that the rule in question is to regulate, or that are conditions upon the application of that regulation. This provision for ambulatory meaning and application of statutes is, I suggest, remote indeed from any notion that Parliament is here directing interpreters to look beyond (or orthogonally from) changing facts, events and conditions to changing attitudes, values and views about the suitability of the rule and regulation in question.  I venture to think that, no more than in 1999 was Parliament in 1888 calling on New Zealand judges to adopt “living tree” interpretation of the ECtHR kind that in effect reads in whole clauses that the framers voted to keep out, and reads them in because we now judge the framers misguided in having so decided, or because we now judge that framers with more up-to-date attitudes to values would include them.

Of course, if some provision in a statute, constitution or convention calls for judgments of value and disvalue to be made, e.g. because it directs that findings be made about what is “reasonable”, fair”, “cruel”…, then judges or juries are being invited and indeed required, by that provision (and its author) itself, to make those value judgments. Then an observer will say that these judges and juries, in so judging, are revealing and acting upon their attitudes, and may note that these are different from attitudes say 30 years earlier. But the judges and juries themselves are being invited to consult, not their own attitudes as facts about themselves, but the criteria of reasonableness, fairness, cruelty … the criteria that they judge right.

Do the Lecture’s criticisms of Chahal, Hirsi Jamaa and/or Belmarsh Prisoners condone torture, presuppose that non-citizens have no rights, and/or indulge in rhetoric foreign both to the facts of those cases and to academic discourse in general?

Many readers, I imagine, will feel that Justice Glazebrook is speaking for them when she writes:

It seems to me that, despite Professor Finnis saying he believes there are moral absolutes, despite the absolute nature of the prohibition on torture and despite the non-refoulement obligations under the Torture Convention, he is effectively condoning torture as long as States did not themselves indulge in the practice but were instead acting to protect their own citizens from a possible risk, rather than with the positive intention that others would indulge in torture. [fn. Professor Finnis’ thesis on this and […Belmarsh] appears to rest to an extent on an assumption that non-citizens have no rights.]

And again:

He is of course entitled to criticise the decision [in Hirsi Jamaa] but in an academic context I would have expected his criticism to be put forward without exaggerated rhetoric. He surely cannot be suggesting, for example, that the decision is responsible for people fleeing war in Syria. [fn. His reference to Ebola and other plagues also seems to me unnecessary scaremongering and not part of the facts the Grand Chamber was considering in the particular case. The same applies to his reference to “uncountable numbers of terrorists”.]

I will take these criticisms in reverse order. The passage which has elicited Justice Glazebrook’s allusions to rhetoric and scaremongering foreign to academic discourse is this:

It [the ECtHR’s living instrument doctrine] all culminates in the remarkable 2011 case Hirsi Jamaa, an important cause (among complex causes) of today’s migration crisis. There the Grand Chamber unanimously outlawed all and any policies like Italy’s policy, agreed with Libya, of “pushing back” migrant boats with their occupants to the country of departure. If such boats might contain among the hundreds aboard even a handful of persons, or one person, who might be at real risk, if returned to Libya, of being sent from Libya to some country where he might be at real risk of degrading or other ill-treatment from the Government or, actually, from anyone, then all boats’ passengers must be allowed to land in Italy. And this, the Court insists in its usual bland, inexplicit way, is an exceptionless rule, an absolute, from which there can be no derogation even if the life of the nation were to be certainly imperilled by the importation of ebola or other plague, or of uncountable numbers of terrorists, or others, intent on overthrowing by force, or numbers, the state and the Convention. The Court’s living interpretation of art. 3 jams the door open.

This passage includes no rhetoric or scaremongering. What it does include is something too rare in today’s conventional academic discourse: a concern that words and propositions be taken seriously and tested for their true sustainability as grounds for condemning and unravelling the decisions of democratically accountable legislatures and governments. The cumulative ECtHR decisions culminating[15] in Hirsi Jamaa have precisely the import and implications noted in the passage. And the evocative phrase “the life of the nation” is taken from art. 15 ECHR, an article which these and related decisions hold is overridden by the absoluteness that these decisions insistently ascribe to art. 3 (and illogically[16] treat as widening rather than narrowing art. 3’s scope). To an astounding degree, academic and judicial commentary on these ECtHR doctrines abstains not only from exploring their fragile foundations but also from facing up to their reach and potential real-world implications for the people of the states party to the ECHR.  Academic discussion about these matters is almost all prudish, timorous and evasive, just as the ECtHR is itself “bland and inexplicit” in its articulation of doctrines that if spelled out in their implications would rightly arouse grave misgivings among many to whom they are indirectly addressed.

I can see no justification for holding that criticism of Hirsi Jamaa should confine its testing of the ECtHR’s remorselessly expansive absolute “to the facts the Grand Chamber was considering in the particular case”. If judges are appropriately “making the future”, as Justice Glazebrook’s whole response (by its title) proposes, we bystanders are entitled to consider, openly, what the future they are making may well hold for us. Is there no real risk of ebola or similar plagues? Does not the forbidding of maritime interdiction enhance the risk of terrorist infiltration and, in the longer term, of such a replacement of peoples and cultures as will negate our constitutional order, not to mention the ECHR? Why are these matters so little discussed in public and in scholarly and judicial discourse about the ECHR? Of course, one answer to that question is that like Cassandra in face of the “Trojan” (Greek) Horse, you will be said to be scaremongering if you raise them, even when the topic of discussion is precisely a doctrine about the absolute exceptionlessness of the prohibition on effective counter-measures against such threats whenever such measures have a side-effect of creating a “real risk” that someone may somewhere be subjected to torture or inhuman or degrading treatment.[17]

Justice Glazebrook’s response keeps its spotlight on torture. But art. 3’s exceptionlessness, one main leg of Hirsi Jamaa, extends beyond torture to “inhuman or degrading treatment”, and that includes, as the ECtHR has held, conditions which are in fact instantiated by some prisons in the developed world and a fortiori by countless prisons, hospitals, and areas in the vast disadvantaged parts of the world.  If the doctrine relied upon in Hirsi Jamaa has even minimal intellectual integrity and coherence, it extends to entitle tens, hundreds or thousands of millions of people to art. 3-based compulsory admission and asylum in Europe, as they choose.[18]

And the migration-to-wealthy-Europe crisis is indeed a reality distinct from, though partly over-lapping with, the refugee crisis caused by the cruel civil war in Syria. That distinction is well known and needs no elaboration here; I take it up further elsewhere.

Is it “condoning torture” to point out the realistically potential real-world implications of the ECtHR’s inflationary absolutist living-interpretation of art.3 ECHR, and call for a more authentic and restricted understanding and application of that Article? I believe it is not — any more than the legislators were condoning perjury when in 1898 (in the UK) they abrogated the old rule of the judges that a defendant cannot testify on oath; or than a vulnerable person who (perhaps ungenerously? or with some vice of cowardice?) refuses to open her door to a burly, armed and audibly frightened stranger condones his murder by his pursuers. Nor was the ECtHR condoning torture or inhuman or degrading treatment when, in decisions it continues to fail to try to reconcile with the Chahal-Hirsi Jamaa line of decisions, it (rightly or wrongly) has held and holds that persons unlawfully present may be deported even though doing so will have the side-effect of depriving them of life-saving medical treatment for their lethal illnesses, and will certainly (or did) result in their miserable deaths.[19]

Nor, finally, do the Lecture’s arguments against expansionist interpretations of art. 3 to generate entitlement to indefinite stay entail a presupposition that “non-citizens have no rights”. My first exploration of this field, in the Law Quarterly Review paper “Nationality, Alienage and Constitutional Principle,”[20] devotes several pages to establishing firmly that “presence within the realm entitles foreigners to the protections of subjects”: non-citizens not only have rights, they have all the rights of citizens, save the right to vote and the right not to be expelled (though they do have the right not to be arbitrarily or otherwise unlawfully expelled, or expelled for wrongful purposes such as complicity in torture). Contrary to a common misreading of that paper, it holds that non-citizens have the very same rights as citizens not to be subjected to detention (let alone indefinite detention) other than detention for the genuine purpose of facilitating their (lawful) removal and expulsion — a purpose that for nearly two centuries has had little or no applicability to citizens.

 Are judges bound by the concessions made by counsel?

Sir Patrick Elias suggests they are, at least if counsel persists when invited to withdraw them. He has exceptional experience in the upper reaches of the judiciary; what he says surely reflects the practice and thinking of our judges. The Lecture ventures to question its constitutional soundness. Where statute directs the court to adopt a certain approach to the law’s interpretation and application, as s. 3 Human Rights Act 1998 does, it seems to me that, when the possibility of complying (or failing to comply) with that provision becomes visible to the court, it should firmly invite counsel who sub silentio or openly is “conceding” (accepting, asserting, assuming) its inapplicability to present an argument to support that inapplicability, and if that invitation is declined should invite counsel for the other side to present such an argument. It may be that counsel’s vacation time research in Belmarsh Prisoners failed to discover the Australian High Court’s treatment[21] of essentially the very issue decisive for Belmarsh, and that therefore (over two months later) counsel and (a further two months later) Law Lords alike remained unalerted and unalert to the possibility of reading the impugned provisions compatibly with the Human Rights Act. If so, so be it. I remain disturbed by the signs[22] that the Law Lords did envisage the possibility and averted their eyes from it, contrary to their constitutional and statutory duty, and therefore neglected to probe the Attorney-General’s concession (a concession that on its face made no reference to s. 3 HRA but that entailed conceding, quite wrongly, that that provision had no applicability in the case).

I can see no judicial obligation of constraint here, other than the obligation of fairness (non-surprise) stated and illuminated by Dyson Heydon in his response.

Does the Lecture propose that judges should ignore questions of justice in interpreting statutes or common law?

Onora O’Neill suggests it does. Immanuel Kant’s late writings, she says—

reached a position similar to Finnis’s on judicial interpretation. See for example “The jurist, as an authority on the text, (der Schriftgelehrte Jurist) does not look to his reason for the laws that secure Mine and Thine, but to the code of laws that has been publicly promulgated and sanctioned by the highest authority  … [and must]   straightway dismiss as nonsense the further question whether the decrees themselves are right”. (Immanuel Kant, The Conflict of the Faculties, 7:24-5).

But that thesis of Kant’s is foreign to my thinking both about development of common law doctrine and about the judicial interpretation of statutes. The moral rightness of their own actions, and therefore of laws directing those actions, is rightly of concern to all who hold authority in the political community (like other groups), including the judges. Judges should presume defeasibly that other office-holders such as electors and legislators intend to act rightly, and should interpret common law and statutes accordingly, so far as is consistent with their legal duties to respect binding judicial precedent and the constitutional hierarchy of clear legislative enactment. It is (for example) a severe blot on the history of the common law that it was so slow to align itself with the moral distinctions between intention and foresight, and so willing to persist with strict liability of the “felony-murder” kind (or again with the equiparation of actual and constructive foresight in DPP v Smith[23]).

Nor do I object to the notion that morally grounded “common law fundamental rights” would subsist even if the Human Rights Act 1998 were repealed (and the ECHR were no longer applicable to the UK).[24] But judicial enforcement of such rights by way, e.g., of strenuous interpretative presumptions, would be constitutionally and morally sound only if the courts (a) took into account, more fully than they tend to do in their present mode of interpreting the HRA, that the legislature too (and in its domain the executive also) has moral responsibility and authority to make and give legal effect to moral judgments about the rights of persons in the jurisdiction to protection; and if the courts (b) avoided the present tendency of courts and writers[25] (aided by the structure and drafting of the ECHR and other such documents) to set up or assume an unwarranted contrast between individual rights and “state” or “public” “interests” — a tendency also vividly manifested, unfortunately, in standard formulations and applications of “proportionality” tests.[26]  The preceding sentence links up, I believe, with the concern raised by Justice Brown in his final paragraph (already mentioned in Q. 3 above). That concern, incidentally, suggests that there may be some tension within public doctrine or assumptions in Canada. For, as he says, Canadians do not think of their legislatures as “rights-infringing machines”; yet a reader of his final comments may wonder whether their courts do not in substance tend, with some regularity, to treat those legislatures very much as if they were.

 

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I am most grateful to every one of the five eminent participants in public life who generously accepted the invitation to articulate reflections on the Lecture, and at least as generously agreed that I might add the further reflections and responses which I here bring to a close.

Professor John Finnis FBA QC (Hon) is Professor Emeritus of Law & Legal Philosophy in the University of Oxford and Biolchini Family Professor of Law at the University of Notre Dame. Between 1972 and 1989 he was Rhodes Reader in the Laws of the British Commonwealth and the United States in the University of Oxford. In 2011, Oxford University Press published five volumes of his collected essay and a second edition of his magnum opus Natural Law and Natural Rights, and in 2013 a major Festschrift in his honour. Finnis was appointed Queen’s Counsel (honoris causa) in 2017.

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[1] “2. To state…that the common law is declared rather than made is no mere ‘fairy-tale’ unless the statement is mistakenly asserted or heard as a description of the history of the common law. It is not a description or prediction…but a statement of judicial responsibility.”

[2] In his view, it was only a “bare majority in the House of Lords” who thought it appropriate for the court to “alter the rule that there could be no recovery of payments made ultra vires where there had been a mistake of law”; the dissenting minority thought the task of changing the rule should be left to Parliament. On my reading of the case, adopted in the Lecture, all five Law Lords were agreed that the rule should be judicially declared and treated as defunct — changed. The minority considered, however, that the newly adopted rule — there can be recovery of moneys paid under mistake of law — did not extend to circumstances where the parties had proceeded in line with a view of the law regarded (at that time) by the legal profession as a correct view. As Lord Browne-Wilkinson (dissenting) put it:

                        The main effect of your Lordships’ decision in the present case is to abolish the rule that money paid under a mistake of law cannot be recovered, which rule was based on the artificial assumption that a man is presumed to know the law. It would be unfortunate to introduce into the amended law a new artificiality, viz., that a man is making a mistake at the date of payment when he acts on the basis of the law as it is then established.

In my reading, the two dissenters shared in “your Lordships’ decision in the present case…to abolish the rule”. What the majority did not share was the dissenters’ view expressed in the second sentence just quoted: that someone does not make a mistake when “he acts on the basis of the law as it is then established”, even though a court, subsequent to the relevant act, authoritatively declares that the “established” (view of the) law was entirely mistaken and the act a nullity. See my case note “The Fairy Tale’s Moral” (1999) 115 Law Quarterly Review 170-75, reprinted as essay 20, “Adjudication and Legal Change”, in Collected Essays of John Finnis: Volume IV (Oxford: Oxford University Press, 2011). As the Lecture says, “reasonable lawyers and judges can disagree about whether and when these conditions [for judicial reform of common law] are fulfilled; the criteria and distinctions in play in this distinction between judicial development of the law and judicial legislation are subtle and elusive.”

[3] An Appendix to this rejoinder reviews the main uses of the tern “guardian(s) of the Constitution” in UK-related courts, identifying those that seem fallacious.

[4] I look at some of the historical discussion of this by American statesmen, judges and legal scholars, a discussion too little known outside the United States, on pp. 7-11 of my 2015 paper, “The Nature of a Free Society”, http://ssrn.com/abstract=2896114.

[5] On some aspects of the backstory to Canada’s fundamental constitutional change effected by the Canada Act 1982 (UK, c. 11), with some incidental evidence relevant to the question just how “full well” the character of that change was understood in advance, see John Finnis, “Patriation and Patrimony: The Path to the Charter”, (2015) 28 Canadian Journal of Law and Jurisprudence 1-25.

[6] “Prisoners’ Voting and Judges’ Powers” (2015) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2687247. The same critique is made more summarily in Finnis, “Judicial Law-making and the ‘Living’ Instrumentalisation of the ECHR” in NW Barber, Richard Ekins and Paul Yowell (eds.), Lord Sumption and the Limits of the Law (Oxford: Hart Publishing, 2016), 73-120 at 73-74, 94-102. In A-G v Taylor [2017] NZCA 215 (26 May 2017), the Attorney-General offered no justification for the legislation, and the Court of Appeal (NZ) had no difficulty in concluding, summarily and mistakenly, that the limitation on voting by convicted prisoners in prison violates prisoners’ rights by being “undiscriminating” [185].

[7] Luzius Wildhaber,“The European Court of Human Rights: The Past, The Present, The Future” (2007) 22 American University International Law Review 521-538.

[8] Fire Service Act 1975 (NZ), s. 48, especially s. 48(6) and (7).

[9] [2014] NZCA 179; [2014] 3 NZLR 541.

[10] [2012] NZHC 3437.

[11] In her excellent 2015 paper “Statutory Interpretation in the Supreme Court [of NZ]”, https://www.courtsofnz.govt.nz/speechpapers/HJG3.pdf, Justice Glazebrook records at fn 74:

On the traditional view, a prima facie ambiguity was required to trigger the presumption [scil. of compliance with international obligations]. Thus the New Zealand Court of Appeal originally held that an open-ended administrative discretionary power could not be confined by implied limits derived from international law: see Ashby v Minister of Immigration [1981] 1 NZLR 222 (CA) at 229 per Richardson J. This is no longer the case and the courts have read open-ended administrative discretionary powers as being subject to the limits of international law: see for example Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA). …

What she is recording here (and in her Otago Law Review article cited in her response to the Lecture) is the quite recent adoption of (one fragment of) a set of judicial attitudes (in substance political) of precisely the kind that the Lecture was concerned to criticize.

[12] Readers should bear in mind that Justice Glazebrook is constrained by her judicial role from defending, in her response, the controversial legal rules and developments she helpfully records.

[13] 1888 is the year in which Lord Esher rearticulated, in Sharpe v Wakefield (1888) 22 QBD 239 (CA), the old and well established principle that a statute’s meaning is the meaning it had the day after it was enacted. An orthodox refinement of this has distinguished connotation (sense, meaning) (which is settled as at that day) from denotation (reference), which shifts as persons and circumstances change, inventions eiusdem generis are made, etc. A useful survey (with a largely Australian focus) is Christopher Birch, “The Connotation/Denotation Distinction in Constitutional Interpretation”, 5 Journal of Appellate Practice & Process 445 (2003): http://lawrepository.ualr.edu/appellatepracticeprocess/vol5/iss2/10. Birch doubts the utility of the distinction. But along the way he remarks:

                        Surprisingly, it has been suggested in some cases that statutes should be interpreted in accordance with the current meaning that would be attributed to their terms even if that would not be the meaning they had when they were enacted. This method even has a label, the “always speaking approach.” … [But] it is difficult to see why the new or altered meaning picked up by the terms used in a statute as a result of linguistic drift should be given effect. It is hard to imagine a justification of the always speaking approach that would satisfy the principles [of justification in interpretation] discussed in the last section of this Article.

[14] Much in the discussion of living instrument interpretation in Justice Susan Glazebrook’s analytical survey, “Do they say what they mean and mean what they say? Some issues in statutory interpretation in the 21st century,” (2015) 14 Otago Law Review 61-89 at 87-88 (“VI. Must statute law stagnate, while the common law develops?”), seems to treat the Interpretation Act 1999 (NZ) as if (somehow in or besides s. 6) it included elements [i] and [iii].

[15] See Finnis, “Absolute Rights: Some Problems Illustrated”, (2016) 61 American Journal of Jurisprudence 195-215 at 201-10.

[16] Ibid. at 196-214.

[17] The fact, noted by Justice Glazebrook, that the NZ Parliament has taken a different view leaves my point intact. The Lecture proceeds on the basis that it is for legislatures, not courts reliant on illogical or logically optional extensions of enacted norms, to commit their societies and fellow-citizens to open-ended risks.

[18] See now the remarkable Opinion (Conclusions) of 7 February 2017 of Advocate-General Mengozzi in X, X v Belgium (C-638/16) (CJEU), an Opinion fended off by the Grand Chamber on narrow grounds not challenging (or endorsing) his non-refoulement argument (based on art. 4 EU Charter of Rights = art. 3 ECHR): X and X v Belgium (Case C‑638/16 PPU), 7 March 2017, CJEU GC. Of art. 4 and art 3, the Advocate-General’s Opinion (in French) says (paras. 134 ff) that their prohibition of acts and “equally” of omissions (or refusals to act) that give rise to real risk of torture or subjection to inhuman or degrading treatment applies even in the most difficult circumstances of terrorism, organized crime, and growing influx of migrants and of persons in search of international protection into member-states suffering from economic crisis.  Among the forbidden acts or omissions, it concludes, is refusal to grant an entry visa, even when the application is made, on the territory of a safe non-member state, to a member-state with which the applicant (as in the X, X case) has no connection whatever.

[19] N v United Kingdom (Grand Chamber, 27 May 2008), 47 EHRR 39. The discussion of this case in “Absolute Rights…”, n. 15 above concludes:

In short, art. 3 is not an absolute. Except when it is. The ECtHR’s premier venture in legislation — its art. 3 law of asylum and immigrant protection — is incoherent. This is the self-contradiction that the logic moral absolutes makes inevitable …. It is not a sound interpretation[19] of the ECHR. It is a violation of the rule of law. It could not be made coherent without returning to the true principle of art. 3: the outlawing of all conduct (acts or omissions, whether one’s own or others’) intended (whether as a means or an end) to torture, degrade or subject to inhuman treatment.  Equivalents of intending include planning, trying, doing or omitting something in order to, with a goal of… and others. Replacing intention by substitutes such as causing, directly bringing about, foreseeably resulting promptly and inevitably in, responsible for — all of them far from the meaning of “intended to” — makes incoherence and arbitrariness in the application of art. 3 inevitable.

A final word about the dissent in N v UK. These three judges were willing to treat art. 3 as imposing limitless obligations on states of providing expensive medical care to anyone indigent from an indigent country who can “set foot in a Convention state”. They seem tacitly to acknowledge the rational fragility of their own position — and thus of art. 3 case-law as a whole, with its supposedly exceptionless imposition of liability for side effects as much as for intended effects. For they intimate, implausibly, that there is no likelihood that more than rather few will ever claim these rights, and that the burden on states is only “budgetary”.  We get a better sense of the potential burden when we reflect that after Hirsi Jamaa, art. 3 includes a right (available to the great numbers of people from or setting out from failed states) to be permitted to set foot in the state, and thus to enter (often illegally but always under art. 3 protection) to stay and obtain such medical treatment without fear of being removed.

[20] (2007) 123 Law Quarterly Review 417-45, reprinted (minus the detail of its critique of Belmarsh Prisoners) as “Nationality and Alienage”, essay 9 in Collected Essays of John Finnis: Volume III (Oxford: Oxford University Press, 2011) 133-49.

[21] Al-Kateb v Godwin [2004] HCA 37; see the Lecture, this volume n22.

[22] See n27 of the Lecture, this volume, and (2007) 123 Law Quarterly Review 417, nn. 71-75.

[23] [1961] AC 290, rightly supplanted by Criminal Justice Act 1967, s. 8.

[24] See e.g. Eirik Bjorge, “Common law rights: balancing domestic and international exigencies”, (2016) 75 Cambridge Law Journal 220-243. These rights are often but not aptly referred to by the attractive phrase “principle of legality”.

[25] See e.g. Bjorge, op. cit. at 223-226 and passim.

[26] See the final argumentative part of the Appendix to this rejoinder.