The devolution project which saw legislative and executive power transferred from Westminster to Holyrood and from Whitehall to Victoria Quay has been accompanied by enhanced judicial powers. As they relate to primary legislation in the devolved sphere, these new powers of the judiciary in Scotland are two-fold. First, and the focus of an earlier post, the courts have a mandate – conferred by the UK Parliament – to supervise the statutory limits to the Scottish Parliament’s legislative competence. That is to say that the courts may (indeed, arguably, that they are duty bound to) strike down Acts of the Scottish Parliament (ASPs) that inter alia “relate to” reserved matters or that are incompatible with the European Convention on Human Rights or with EU Law. Secondly, and the focus of this post, the courts have assumed for themselves the power at common law to strike down, in extreme circumstances, ASPs that they deem to be violative of the rule of law. What was merely hypothesised by Lord Steyn, Baroness Hale and Lord Hope in Jackson v Attorney General in relation to Acts of the UK Parliament is for the Scottish Parliament a working reality.
This ‘rule of law’ test was set out by the UK Supreme Court in the leading case AXA General Insurance v Lord Advocate. Lord Hope and Lord Reed, the two Scottish Justices on the court, agreed:
- That ASPs – being primary legislation made by a non-sovereign legislature – are subject to common law as well as to statutory constraints. In the early devolution case law, the Outer House of the Court of Session had offered contradictory answers to this foundational question: in one case stating that ASPs are subject only to the limits set out in the Scotland Act itself, and in other (indeed at first instance in AXA) that – as with any other creature of statute – the Scottish Parliament was amenable to the supervisory jurisdiction of the Court of Session on the full range of common law grounds.
- That only in extreme circumstances – those in which the Scottish Parliament had legislated contrary to the rule of law itself – would an ASP be vulnerable on common law grounds. Again, prior to the Supreme Court’s intervention, on this question the jurisprudence of the Court of Session had been unclear: the Inner House in AXA had saidthat ASPs might be challengeable on common law grounds of ‘bad faith’ or ‘improper motive’ as well as on the ‘rule of law’ grounds hypothesised in Jackson; whilst, as we have seen, the Outer House in the same case had earlier asserted the applicability of the full range of common law grounds in contrast to another that had rejected the existence of any such ground.
Whilst it might be said that the decision in AXA has provided welcome clarity to law makers as well as to those who might seek to challenge the validity of legislation, there has to my mind been a disconcertingly muted response to the claims made by Lords Hope and Reed that the rule of law (as defined and) enforced by the courts exists as a sort of constitutional trump card to be played even over legislation passed by a democratically elected parliament. Given that this judicial power is self-constituted and self-regulating it is incumbent on us as a legal community to retain a degree of healthy scepticism with regard both to the exercise of that power and to the normative claims that underpin it.
Of course, it might simply be said that the claims made for the rule of law in AXA have been readily accepted because they are considered neither to be controversial nor to be constitutionally improper. This might be because, to borrow from Lord Woolf, these are seen only to be limits of a minimal kind, ‘the sort that any democrat would surely accept.’ Or – and as has been suggested elsewhere on this blog – it might be because the threshold for judicial intervention on this ground is set so high as to be practically and politically irrelevant. Contrary to Lord Woolf, however, it is precisely the indeterminacy of the ‘rule of law’ test that renders it so problematic. Before we return to this point, let me first address why this matters: in other words, why we must be alert to the very real practical and political relevance of this new ground of review.
- First, the ‘rule of law’ test established by the Supreme Court must now figure as an active consideration alongside the statutory limits to legislative competence in the advice given by Scottish Government, Scottish Parliament and UK Government lawyers to their respective clients. It is firmly a part of the devolved landscape: a ground by which legislation can be prevented by the court from becoming law, or subsequently struck from the statute book. As such the possibility of challenge might itself generate a certain chilling effect, dissuading ministers and the parliament from legislating to the fullest extent of their powers, or come into play in the iterative process that occurs between Scottish Government, Scottish Parliament and UK Government officials in the task of vetting ASPs for legislative competence.
- Secondly, and on the other side of the same coin, not only does the ‘rule of law’ test figure in the risk assessments made by legal advisers in the process of passing legislation, it figures too in the minds of lawyers instructed to challenge legislation that has successfully been navigated through the policy making and parliamentary processes. As my colleague, Aileen McHarg, has said there is a real danger that by adding to the statutory tests the court might encourage speculative challenges from the powerful in the promotion of their political interests. The admission by counsel for the Christian Institute that he had included an argument founded on fundamental common law rights in a challenge to the Scottish Government’s controversial Named Person scheme ‘for completeness’ and that ‘nothing came anywhere close to the threshold of truly exceptional circumstances justifying such a challenge’ seems to hint in that direction.
- Thirdly, whilst the ‘rule of law’ test established in AXA – as with that hypothesised in Jackson – is set against legislation of an extreme kind, the context in which each was reasoned reveals a different story. Lord Steyn’s obiter in Jackson was first aired (almost word for word) in an extra judicial speech directed squarely at an actually existing provision within an actually existing bill: the controversial ouster clause contained in the Asylum and Immigration (Treatment of Claimants, etc) Bill. No extreme case here (why was it that this ouster attracted particular hostility?) the ‘rule of law’ test was invoked in this instance in order to influence the shape of legislation (successfully, it would seem: the ouster was later watered down in no small part due to an unprecedented extra-judicial backlash). Lord Hope’s obiter in Jackson was similarly intended as a warning shot across the bows of a government that, in his view, had used its parliamentary majority to play fast and loose with the rule of law in the name of counter-terrorism; whilst in AXA it was (as was the case in the Scottish Parliament’s fourth session) the potential for a single party to dominate both the only chamber in the parliament and the committees charged with the task of legislative scrutiny that jarred. The point is this: the bar at which the ‘rule of law’ test is satisfied might be set (exceptionally) high, but we should be slow to content ourselves that his is evidence of judicial restraint. The very articulation of that test – inspired by real world political actions – has been intended directly to affect the way in which parliamentary government and the passage of legislation is conducted.
All of this is to say that we cannot – and must not – postpone making the intellectual case for judicial restraint behind the too easy assumption that the ‘rule of law’ test is in any case practically and politically irrelevant. As such, in what remains I will turn my attention to two challenges that might be made to the ascendancy of the rule of law as constitutional trump.
There is, in my view, a two-fold indeterminacy that undermines the ‘rule of law’ test as it is articulated in AXA. First, despite offering clarity where previously the case law was somewhat contradictory, there remains indeterminacy as to the constitutional foundations which underpin and legitimise the test as an independent ground of review. For Lord Reed the ‘rule of law’ test is applied to Acts of the Scottish Parliament in an exercise of statutory interpretation: the application of the principle of legality to the Scotland Act itself. The rule of law is therefore limited by Acts of (the UK) Parliament, finding no purchase where Parliament explicitly chooses to authorise the curtailment of fundamental rights – say, by transferring in express terms, and by primary legislation, the power to the Scottish Parliament to abolish the supervisory jurisdiction – and is willing to confront the political cost of so doing. For Lord Hope, on the other hand, the rule of law – in his view no less than the “ultimate controlling factor on which our constitution is based” – is a constitutional fundamental that exists separately from (potentially in conflict with, and which might even trump) the sovereignty of parliament. Following his reasoning in Jackson and in AXA to its logical conclusion, Lord Hope might feel less inclined to recognise the legitimacy of such an enabling act.
Secondly, even if the Supreme Court was to agree on its constitutional foundations, the ‘rule of law’ test would remain vulnerable to the indeterminacy of its substantive content. This is to say that neither Lord Hope nor Lord Reed have attempted to identify with any degree of precision what might be so fundamental to our liberal democracy as to be beyond the pale. Lord Hope repeats in AXA the oft cited example of legislation that seeks to “abolish judicial review or to diminish the role of the courts in protecting the interests of the individual” and elsewhere his successor on the court, Lord Hodge, tells us that the right to vote might – if abusively curtailed by a parliamentary majority seeking to entrench its own power – constitute one such limit. Beyond these examples, however, we have very little to guide us. Of course, there are good reasons to shy away from specificity: not least of all that it might amount to a ‘sign post to the guilty’. However, we must be extremely wary of rendering primary legislation – initiated by a government with a democratic mandate; subject to 12 weeks of public consultation; scrutinised and passed by a democratically elected parliament with engagement from stakeholders and from the wider public; subject to override by a (hierarchically) superior and democratically elected legislature; and subject to review by the courts at the statutory limits to its legislative competence – vulnerable to standards so imprecise as to be unhelpful at best and arbitrarily applied at worst. As Tom Mullen has said, and has been the case with the problematic tests for irrationality/unreasonableness, even where the threshold for intervention is set high it remains susceptible to being lowered (or indeed raised) in the course of subsequent judicial development.
Central to this thickening of the rule of law has been the assumption that it is necessary in order to protect certain constitutional fundamentals – those ‘that any democrat would surely accept’ – from the whims of parliamentary majorities. The intellectual case for judicial minimalism must begin with the proposition that there are no such essentials: that any attempt to remove this or that artificially constructed value from the political arena is itself a political act. Everything – including the sovereignty of Parliament itself – is subject to legitimate disagreement. Parliamentary democracy is to be celebrated not because of any underlying notions of Parliamentary (UK) or popular (Scotland) sovereignty but because it is for the moment the best channel that we have for resolving and continuing those disagreements. Seen in this light the essential claim for the ‘rule of law’ test – the comforting assertion that it merely protects that which we hold dear against the excesses of political disagreement – crumbles when we consider that both its substantive content and the foundations from which it draws its authority are the very stuff of such disagreement, not least of all between the members of the judiciary themselves.
University of Strathclyde