Pen and paper

What is the proper function of the judge? And what, in a democratic society, are the proper boundaries between the judicial, executive and legislative arms of the state? This is a perennial debate about which opinions differ. Professor Finnis, in a characteristically trenchant and thoughtful paper, provides a powerful critique of the judicial role and suggests that the judges are too often straying from their legitimate sphere and improperly trespassing into the legislative and executive fields.

Drawing upon the writings of Francis Bacon, the distinguished seventeenth century lawyer, Professor Finnis encapsulates the role of the judge as being “to identify the rights of the contending parties now by identifying what were, in law, the rights and wrongs or validity or invalidity of their actions and transactions when entered upon and done.” This is not a statement of what they do; it is a statement of what they ought to do, of their judicial responsibility, and Professor Finnis contends that they are too often departing from it. It is not their function, and not their responsibility, to develop law with the purpose of seeking to make rules for the future, but this is what they do too frequently.

In a typically provocative observation, he says that the declaratory theory of law, i.e. the notion that the common law is ever the same and judicial decisions are simply evidence of what the law is and always was, whilst not an accurate description of the history of the common law, is no mere fairy tale, as judges and commentators have often claimed. Professor Finnis asserts that it captures the essential truth about the nature of judicial responsibility, namely the obligation to declare what the relevant law was at some point in the past.

This might suggest that legal rules are fixed or ossified but Professor Finnis denies that he is taking so stringent a line. The judge is entitled to develop the law, but should do so with considerable caution.

It seems to me that Professor Finnis sees the ideal judge as an essentially conservative figure, amending and developing the common law but only where there is obvious and clear justification. It is only where the legal rule is so out of line with principles and standards developed in analogous areas that the judge can be confident that the established law is wrong and should be changed. It is not enough that the judges might think that the law would be better served in the future if established principles were altered. Whilst any amendment to the common law will necessarily affect future transactions, that is an incidental consequence of the judge’s decision. It is not, or at least ought not to be, a matter of judicial concern.[1]

An obvious difficulty with this analysis is that the distinction between legitimate dispute resolution and illegitimate rule making for the future — legislating — may be extremely difficult to draw in any particular case. There is often room for a difference of opinion as to whether judges have stepped out with their proper sphere or not. Professor Finnis does not deny that and yet he contends that the distinction is nonetheless fundamental. There is, he says, a chasm between the two, even if there may be disagreement about on which side of the chasm a judge has planted his flag in any particular case.

I would agree that there are both institutional and constitutional reasons why the courts should be cautious when developing the law. As to the former, Parliament has access to information and expertise not available to the court. Moreover, the adversarial nature of litigation is wholly unsuited to law making save in an incremental way, from case to case. Various parties who are unrepresented in the judicial process may be significantly affected by the outcome. An obvious example is where cuts in public expenditure are held to be unlawful. The almost inevitable consequence is that savings have to be made elsewhere to the detriment of another group or groups. Whilst this does not mean that judges can never strike down such decisions for good public law reasons, I do not dissent from the proposition that judges must be particularly sensitive to the charge of undermining policies made by the elected representatives. I would add that these difficulties are not solved by allowing representation by interested parties because they often have a particular axe to grind and may reinforce the limited perspective under which the court labours.

These institutional limitations do not, however, preclude judicial control of the executive by appropriate principles of judicial review. The theory is that their essential purpose is to ensure that the executive keeps within the bounds allocated to it by Parliament, which is ultimately sovereign. (This cannot, however, be the basis of judicial control of the prerogative itself.)

Consistently with his view of the limited role for judges, Professor Finnis affirms the principle of Parliamentary sovereignty and rejects as heterodox the view occasionally floated by judges, for example by Lord Steyn in Jackson v Attorney General,[2] the hunting ban case, that the principle of Parliamentary sovereignty is simply a common law rule which the courts are entitled to amend like any other rule. In general, I too would reject the view that the courts could lawfully refuse to give effect to an Act of Parliament. A failure to do so would amount to a constitutional revolution (possibly justified in highly exceptional circumstances, but a revolution nonetheless) rather than the exercise of a legitimate constitutional power. But I think it arguable that Parliament, no more than the courts, could seek to undermine the fundamental features of the constitution itself which have evolved through our constitutional history. In particular, I have in mind legislation which purports to remove altogether the ability of the courts to review the exercise of governmental power conferred by Parliament (as the Blair government were at one time minded to do with respect to certain immigration decisions).

I do not doubt that many, perhaps most, judges would accept the thrust of Professor Finnis’ theoretical framework although some would no doubt argue that even within that framework judges have more legitimate scope for moulding the common law than he would allow. Where I suspect they would disagree is whether he provides convincing evidence of any widespread abuse of judicial power.

In analysing that question, I think it is helpful to distinguish between three different aspects of the judicial function. The first is the judges’ role in developing the common law. A particular aspect of this, bearing directly upon the relationship between the courts and the executive, is the principles of judicial review. The second is the judicial role in the interpretation of legislation. The third is the role conferred upon the judges by the Human Rights Act to protect individual human rights. In my view this last area is qualitatively different from the other two and raises different and distinct concerns.

Professor Finnis questions whether it is properly a judicial function to carry out the proportionality requirement which underpins many Convention rights. As I explain below, I have considerable sympathy for that view, particularly given the way in which the proportionality principles have been developed. The problem, however, is that judges have no option other than to exercise that function because Parliament has told them they must; and moreover, whatever the defects in the developing jurisprudence of the European Court of Human Rights — and again Professor Finnis is right to say that the Strasbourg court has extended the principles of human rights in ways which would astound the Founding Fathers — Parliament has told the courts by section 2 of the Human Rights Act that they must take into account that jurisprudence too. Much as Professor Finnis might wish it were otherwise, the courts cannot ignore that injunction; and it could hardly be a proper interpretation of it, or be in compliance with the rule of law, for the courts to adopt a policy of giving no weight to Strasbourg decisions, however suspect the rulings of that court may be. Indeed, since the purpose of the HRA was to “bring rights home” and to provide remedies in the domestic courts which were formerly only available in Strasbourg, in the normal run of things one would expect the rulings of the Strasbourg court to be followed otherwise the purpose would not be achieved.

Common law developments

Let me turn to the three areas I have outlined. First, the development of the common law. Courts are regularly faced with the question whether they can properly develop the common law or whether the decision is one better suited to Parliament.

As Professor Finnis recognises, the arguments are often finely balanced. This is partly because even where the court can be confident that a particular rule is out of line with established common law principles, and is perhaps anomalous or even irrational, there may nonetheless be good reasons why the court might consider that it would be more appropriate for any amendment to be left to Parliament. Lord Goff was very much alive to these reasons in the decision of the House of Lords in Kleinwort Benson Ltd v Lincoln C.C[3] where, as part of the bare majority in the House of Lords, he nonetheless thought it appropriate to alter the rule that there could be no recovery of payments made ultra vires where there had been a mistake of law. Professor Finnis approves of the majority judgment in that case. But there were in fact powerful arguments, again both institutional and constitutional, for leaving the matter to Parliament. Some of these considerations swayed Lord Browne Wilkinson and Lord Lloyd, the minority in Kleinwort. They agreed that the rule was indefensible and should be changed but considered that the task should be one for Parliament given in particular the difficulties which arose from the application of the limitation period. They considered that the court should indicate to Parliament that this was an area which needed to be addressed, and appropriate rules could then be drafted by Parliament perhaps with the assistance of the Law Commission. In cases of this kind there is always room for genuine and legitimate disagreement about whether the circumstances are such that the courts should defer to the expertise of Parliament. The temptation is to think that the judges have got it right when one agrees with them, but have trespassed onto the domain of Parliament when one disagrees!

The tensions arising in these cases are illuminated in a typically thoughtful paper on this topic by Lord Robert Walker. He analysed a number of authorities where the House of Lords, or latterly the Supreme Court, has had cause to consider whether or not to alter established principles of the common law or to leave the matter to Parliament.[4] It is not unusual for the court to be divided on this question. As Lord Walker suggests, there may well be a legitimate concern that the judges act more from intuition than clear principle when resolving this dilemma, perhaps because it is too difficult to define the proper boundary in the abstract. But it would be unjust, in my view, to suggest that judges are not acutely aware, in this context at least, of the proper limits of the judicial function.

Professor Finnis suggests that the decision of the House of Lords in Haughton v Smith[5] is a paradigm case of an erroneous and wholly misguided modification of the law. In that case their Lordships held that there could not be a conviction for an attempted crime if in the particular circumstances, and unbeknown to the defendant, it was in fact impossible for the defendant to have committed the full crime. He suggests that the principle enunciated by the House of Lords was contrary to common sense and plainly misguided, as the subsequent decision of the House of Lords in Shivpuri demonstrated.[6] I am not sure that it did since it was interpreting the Criminal Attempts Act, passed in response to the Haughton decision. But leaving that aside, in my view it is difficult to say that their Lordships in Haughton were recklessly stepping into the legislative arena where they had no right to be. They had to determine the point of law raised before them: did this defendant have a lawful defence or not? They could not dodge the question and there was no binding authority. Lord Reid, whose judgment in Haughton comes in for particular criticism from Professor Finnis, carefully considered the authorities, including some nineteenth century cases (one of which he chose not to follow for the perfectly proper reason that it was devoid of reasoning!). Lord Reid thought that the answer he gave was consistent with established principle and with common sense. He was also keen to emphasise that his judgment was focusing solely on the facts of that case and no further.

Professor Finnis asserts that common sense required the opposite conclusion. But that itself is a controversial statement. The issue before the House had stimulated heated and trenchant academic discussion. There is much force in Professor Finnis’ view that the decision was mistaken and that the common law took a wrong turning in concluding that no offence could be committed. Indeed, I am personally inclined to agree with him. But 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. Moreover, I would not myself describe the decision, as Professor Finnis does, as a ‘liberal’ one any more than the judgment in Shipvuri could fairly be characterised as ‘conservative’ or ‘reactionary’. The task of the court was to reach a solution which was most compatible with underlying common law principle and policy. This was not a‘liberal’solution in the same politically charged sense that one can justifiably describe many of the social policy decisions taken by the US Supreme Court. I entirely agree with Professor Finnis that a strong ideological commitment to a particular result often drives and distorts the reasoning of the individual judges in that Court. But in my view it would be a travesty to describe the approach of any of the judges in Haughton in those terms. Even if their conclusion was horribly wrong, as Professor Finnis asserts, it does not demonstrate any improper exercise of judicial power, merely a deficient one.

The Professor suggests that the judges in Haughton may have paid too much attention to what he characterises as “seductive slogans” advanced by counsel. That, with respect, does less than justice to the quality and integrity of the judges in question. They may have been wrongly influenced by the arguments advanced, possibly they may even have thought that these “slogans” pithily encapsulated the correct underlying principles. But that does not justify an inference that the judges were seeking to act like legislators or failed to approach the legal issue before them with the appropriate rigour.

I am not persuaded that the judges can fairly be criticised for usurping the legislative role in the development of the common law.

Where I think a case can be made for asserting that the courts are at least at risk of expanding their power illegitimately is in the development of the common law principles of judicial review. In part as a consequence of the impact of Convention jurisprudence, the courts have virtually adopted the concept of proportionality as a principle of the common law which might possibly be engaged even where no human rights are engaged.[7] This is part of a general trend to expand the circumstances in which the courts are willing to review the substantive merits of the decision of a public body, with the degree of scrutiny depending upon the nature of the decision in question. To the extent that the principle of proportionality, at least as developed by the courts, is itself an inappropriate tool for judges to employ in the Convention context, its incorporation as a general doctrine of the common law would likewise risk improper interference with executive and legislative decisions.

Statutory interpretation

The second area to consider is statutory interpretation. Is there evidence that judges are distorting the proper construction of constitutional statutes in a way which can fairly be said to undermine Parliament’s obvious intention? There has undoubtedly been a shift in the principles which the courts adopt when construing constitutional legislation. Even before the Human Rights Act came into force, the court adopted what is (somewhat oddly) termed the common law principle of legality. As Lord Hoffmann described it in the Simms[8] case, this means that the courts will assume that Parliament does not intend by general or ambiguous words to interfere with fundamental rights and will only sanction such an interference where the statutory language brooks no other possible construction. The principle at least pays lip service to Parliamentary sovereignty. It is not in itself a novel principle even though it departs from the conventional theory that the courts should give effect to the meaning of a statute as objectively determined from the language used. But the important question is what the courts will treat as fundamental rights. In practice, this principle has barely figured in judicial reasoning since the passing of the HRA because by section 3 of that Act Parliament has conferred upon judges an even wider power to remedy defective statutory language where human rights are engaged. But the common law doctrine stands in the shadows ready to be employed should the HRA be repealed.

Professor Finnis cites two examples of cases where in his view the courts have improperly construed legislation. One is the recent Supreme Court decision in Evans v Attorney General [2015] UKSC 21 concerning the question whether, under section 53 of the Freedom of Information Act 2000, it was lawful for the Attorney General to prevent the disclosure of certain letters sent by the Prince of Wales to government ministers by issuing an appropriate certificate. There can be no doubt that on the most natural construction of the words used by Parliament the Attorney General, as the appropriate minister, did have the power to issue a certificate which had the effect of overriding the decision of the Information Commissioner (or, on appeal, of a tribunal) that disclosure should be withheld. The condition for the exercise of that power is that he should have reasonable grounds for reaching his conclusion. A majority of the court held that the certificate was not valid in the particular circumstances, relying upon a concept of the rule of law which, for three judges at least, was taken to mean that the executive could not frustrate a judicial decision absent very clear language to the contrary. It was not enough that the Attorney General simply disagreed with the public policy assessment of the Commissioner or the Tribunal.

I will not consider the different strands in the reasoning of the judges which have been very well analysed by Richard Ekins and Christopher Forsyth in their paper Judging the Public Interest[9]. Suffice it to say that these authors provide in my view powerful arguments to support the conclusion that the dissenting minority (Lords Wilson and Hughes) were correct. As Lord Hughes pithily remarked: “…it is an integral part of the rule of law that courts give effect to Parliamentary intention. The rule of law is not the same as a rule that courts must always prevail, no matter what the statute says”. Importantly, this was not a case where the court could claim to be more attuned to the public interest than the minister, and it is difficult to see how the statutory language could have been clearer. It is, I think, an interesting question whether the impact of the Human Rights Act, although not directly in issue in this case, has subconsciously encouraged judges to take a more activist line than might otherwise have been the case.

The Belmarsh decision

Another case relied upon as an example of a defective analysis of a statute was the decision of the House of Lords in the Belmarsh case.[10] Professor Finnis makes this a central plank of his paper. The case concerned the detention of non-nationals believed to be a security risk under section 23(1) of the Anti-terrorism, Crime and Detention Act 2001. Professor Finnis believes that the case went badly wrong because of a concession erroneously made by counsel acting for the government that the detention was contrary to article 5(1)(f) of the Convention, even though that provision says that any detention which is “pending deportation” is not unlawful. The government sought to justify the detention on the grounds that it had lawfully derogated from article 5(1)(f) in time of emergency as permitted by article 15. Professor Finnis argues that the case ought not to have been seen in those terms at all. The natural meaning of section 23 of the 2001 Act was that indefinite suspension would be “pending deportation” provided the government was taking genuine and active steps to bring about deportation, even if its attempts were being frustrated. The government lawyers should never have conceded the point, and the judges were equally culpable in allowing them to do so.

I would accept that this was an argument which the government lawyers could have pursued (somewhat bizarrely, they chose formally to reserve the point). But I am far less optimistic than the Professor that it would have succeeded. The issue, it seems to me, is whether the House of Lords would have accepted that someone can still be said to be detained “pending deportation” within the meaning of article 5(1)(f) when there is no reasonable prospect of securing deportation in the reasonably foreseeable future. The position adopted in domestic law, following the decision in Hardial Singh,[11] was that it could not then be said that the detention was pending deportation, and although section 23 was obviously framed to override that principle in the national security context, that would not assist the government if the court were to hold that the Hardial principles were also reflected in Convention law itself. Lord Bingham seemed to think that they were having regard in particular to the Chahal case[12]: see paragraphs 8-9 of his judgment.

It is true that Lord Bingham did not hear argument on the point, and I would accept that the possibility cannot be discounted that their Lordships, or at least a majority of them, may have been persuaded that there was no breach of article 5(1)(f), although I personally doubt whether they would have been. However, even if the government ought to have argued the point, I do not think that the House can be criticised for accepting the concession. If, as seems to have been Lord Bingham’s position, the court’s provisional view at least was that the concession was properly made, it would hardly be appropriate to encourage the government to argue a point which the court thought it would be likely to lose. Second, and in any event, it is not unreasonable for the judges to assume that there is good reason for the making of the concession without investigating why it was made. Indeed, if any encouragement to run the point is over-zealous, it risks allegations of judicial bias. I would accept that it would not have been improper for the court to have raised with government lawyers the question whether they were sure that they wished to concede the point, particularly in a case of such constitutional importance. But even then, if the government was not willing to withdraw the concession, the court could hardly take and resolve the issue of its own motion.

European convention

The third principal area of judicial activity is the role conferred upon judges by the Human Rights Act. Although the courts cannot formally strike down legislation, the Act has transformed the relationship not only between the courts and Parliament but also between the courts and the Executive. The doctrine of proportionality has a central role to play in the application of many of the key Convention rights. Ever since the seminal judgment of Lord Bingham in Huang v Secretary of State for the Home Department [2007] UKHL 11, the courts have been required to strike the proportionality balance for themselves and not merely to exercise a reviewing function.

The power which this confers upon the court is reinforced by the way in which the proportionality test has been formulated. It was initially seen as a least intrusive principle – any interference with a human right should be rationally related to a legitimate objective and be no more intrusive than is required to achieve that objective: see De Freitas v Permanent Secretary of Ministry of Agriculture [1999] 1 AC 69. Even then, the Supreme Court has sensibly held that there must be a realistic approach to the least intrusive principle because it will almost always be possible to think of a less intrusive interference: see the judgment of Lord Reed in HMS Treasury v Bank Mellat [2013] UKSC 39 para.75.

But there is an additional aspect of the principle which Lord Bingham adopted in Huang, namely that the objective should be sufficiently important to justify interfering with the right. If that simply means that the objective manifestly is too trivial to justify the interference, it might have some validity. But it is not being applied in that limited Wednesbury sense. Moreover the exercise involves comparing values which are not truly commensurable — apples and pears. It confers upon the judges a potentially very wide power to interfere with decisions of the executive. How far they will choose to exercise that power will vary from judge to judge. It depends on a number of factors, not least the judge’s perception of the judicial role and its place in democracy and, it has to be admitted, his or her ideological leanings.[13]

Whatever the formal power conferred upon the courts by the Human Rights Act, no legislation can alter the fundamental institutional limitations of the adjudicative process or its weakness compared with the advantages enjoyed by the legislature. Moreover, judges must exercise a certain humility and be acutely sensitive to the dangers of making decisions which are better left to those who are politically accountable. In particular, in my judgment the courts should be particularly reluctant to make decisions which interfere with the government assessment of national security, or which relate to issues of macro-economic policy, or contentious principles of social policy.

They do not always do so. Professor Finnis, in my view justifiably, criticises the majority decision in Nicklinson[14] for failing to respect the proper boundaries between the courts and Parliament. The issue was whether or not the law which forbids assisting someone to die should be a criminal offence. The majority came close to granting a declaration of incompatibility on the grounds that the particular provision in question, section 2 of the Suicide Act, infringed article 8, and Lady Hale and Lord Kerr would have done so. This was notwithstanding the fact that the issue had been debated on a number of occasions in Parliament who have been unwilling to repeal the section. Many people consider, rightly or wrongly, that society will be less cohesive and individuals subjected to undue pressure to end their lives, if this is permitted. They are alive and sympathetic to the genuinely desperate circumstances in which individuals can find themselves. They may be right or they may be wrong, but what gives judges any special insight to say that they are wrong? I would accept that the purpose of human rights law is sometimes to protect minorities from abuse of majority power. But where a highly sensitive ethical issue has been the subject of heated and controversial political discussion, the courts must be particularly wary of resolving the debate and taking it out of the hands of the representatives of the people.

Conclusion

I do not think that there is convincing evidence that the courts are stepping beyond their legitimate boundaries in the general development of the common law or in the field of statutory interpretation. But I do accept that there is legitimate cause for concern that the weapon of human rights may be too readily wielded by the judges so as to undermine decisions of the executive and the legislature.

Professor Finnis starts from a position of hostility to the Strasbourg court and the incorporation of Convention rights into domestic law. I do not share his opposition to the principle that human rights should have an important constitutional status; and I think that it would send the wrong signals internationally if the UK were to cease to be a party to the Convention on Human Rights, notwithstanding that I accept that a strong case can be made for saying that the court is too intrusive and has in certain areas expanded human rights in unacceptable ways. I agree with Professor Finnis that their ruling over prisoners’ voting rights provides a striking example.[15] The HRA has in turn increased the power of unelected judges but it should not lead to government by judges. The question is whether in the exercise of those powers the judges have a sufficiently clear grasp of the limitations of the judicial process and of the importance of political accountability. Inevitably different judges will have different views about how they should approach human rights cases. An analysis of Supreme Court cases demonstrates that some are much more willing to use human rights arguments as a justification for attacking government power than others. My concern is that if the judges are perceived to be entering into the political arena, this will inevitably lead to a growing chorus for judges to be subject to political scrutiny before appointment. That could end in judges being appointed because of their political views, as in the USA. That would transform the very nature of the courts and even the judicial process itself. It is not a development I would wish to see.

Sir Patrick Elias PC QC is a former Lord Justice of Appeal. Sir Patrick was a Fellow of Pembroke College, Cambridge, and a university lecturer. He was called to the Bar (Inner Temple) in 1973, took Silk in 1990 and was elected a Bencher in 1995. Sir Patrick was appointed to the High Court in 1999 and the Court of Appeal in 2009, retiring in 2017.

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[1] There is an interesting question, not discussed in the paper, whether the concept of prospective overruling might ever be justified to protect the expectations of those who have conducted their affairs on the basis of established legal principles which, contrary to general legal understanding, the court now declares to have been erroneous.

[2] [2005] UKHL 56; [2006] 1 AC 262.

[3] [1999] 2 AC 349.

[4] Lord Walker, “How far should judges develop the common law?” (2014) 3 Cambridge Journal of International and Comparative Law 124—135.

[5] [1975] AC 476.

[6] [1986] UKHL 2.

[7] See Pham v Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 WLR 1591 and Kennedy v Information Commissioner [2014] UKSC 20; [2015] AC 455.

[8] R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL 33; [2000] 2 AC 115.

[9] Richard Ekins and Christopher Forsyth, Judging the Public Interest: The rule of law vs. the rule of courts (Policy Exchange, 2015).

[10] A and others v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68.

[11] R (on the application of Singh) v Governor of Durham Prison [1983] EWHC 1 (QB).

[12] Chahal v UK [1996] ECHR 54.

[13] Lord Justice Elias, “Are Judges Becoming Too Political?” (2014) 1 Cambridge Journal of International and Comparative Law 1‑26, 19.

[14] R (Nicklinson) v Ministry of Justice [2014] UKSC 38; [2015] AC 657.

[15] Hirst v UK (No 2) [2005] ECHR 681; [2014] 3 WLR 200.