Editor’s Note: Last month Policy Exchange’s Judicial Power Project published a report by Professors Richard Ekins and Christopher Forsyth on Judging the Public Interest: the Rule of Law vs the Rule of Courts. The Project invited comments on the paper from Professor Adam Tomkins (University of Glasgow), Dr Se-Shauna Wheatle and Professor Roger Masterman (both from the University of Durham), Dr Jan van Zyl Smith (Bingham Centre for the Rule of Law) and Martin Chamberlain QC (Brick Court Chambers). Their comments can be found here. In this reply, Richard Ekins and Christopher Forsyth respond to the earlier comments on their paper. 

We are grateful to Adam Tomkins, Se-Shauna Wheatle and Roger Masterman, Jan van Zyl Smit, and Martin Chamberlain for their thoughtful responses to our recent critique of the Supreme Court’s mishandling of the ministerial veto in the Freedom of Information Act (FOIA). In this brief reply we consider three points: first, the meaning of the rule of law and its implications for evaluating the ministerial veto; second, the limits that the rule of law places on the power of judges even if they conclude the veto is constitutionally problematic; and third, the wider constitutional significance of Evans.

The ministerial veto and the meaning of the rule of law

Wheatle and Masterman argue that we conflate the question of whether there is a conflict between a statute and the rule of law with the question of the appropriate judicial response to such a conflict. In fact, as van Zyl Smit notes, we say clearly that some statutes authorising ministers to set aside judicial decisions would flout the rule of law. And we consider carefully whether section 53 is objectionable in this way. But crucially even if the section did flout the rule of law, the rule of law would nonetheless have something to say about what judges may do in response – viz. that the law laid down by Parliament should be upheld. In our constitutional order, if Parliament’s intent is clear, the courts are bound.

In what follows, we consider the limits that the rule of law places on judicial power, but for now we return to the question of whether s.53 flouts the rule of law. Wheatle and Masterman themselves say relatively little about this, largely relying on the Tribunals, Courts and Enforcement Act 2007, which deems the Upper Tribunal to be a superior court of record. The other commentators address the question in somewhat more detail.

Tomkins argues that the ministerial veto was not only consistent with constitutional principle but was also good policy. He reviews the history of the FOIA, noting the openness of the scheme it introduces, which helps explain why it was decided that ministers should retain the right to determine that the public interest did not require disclosure. Chamberlain also notes the significance of the fact that the FOIA introduces a new regime and asks why, if the rule of law permits judicial bodies to be empowered to make recommendations, it should be thought offensive to empower them subject to an exceptional override.

Jan van Zyl Smit suggests that underpinning Lord Neuberger’s shaky legal reasoning is a respectable defensive concern that the introduction of one executive override might encourage the introduction of others, which would be problematic even if limited to novel ‘rights’, such as to freedom of information (or perhaps welfare). For the introduction of an executive override would constitute a kind of rule of law stasis in which the novel rights in question would lack full judicial enforcement. This is a helpful elaboration but to our mind it begs the question about what legal rights are in this new domain and the worry about a cascade of further ministerial vetoes is, speculative. It is not clear why these considerations should make us think that s.53 is unconstitutional. One might equally say that they are reasons not to give the court a role in the FOIA at all.

We note also van Zyl Smit’s very interesting argument against non-final judicial roles, namely that they trade on, and will in the end devalue, the authority of the judiciary. This is a powerful argument, which chimes with our concern about the new human rights role of the courts. But in relation to s.53, the judicial body in question is a tribunal (and at the time of enactment, a fairly humble tribunal) not a general court. It seems to us a stretch to say that subjecting the Tribunal’s judgment about the public interest to executive override is a misuse of judicial authority. It might be better to say that questions about the weight of competing public interests should not be for judicial bodies. But again, we doubt that constitutional principle positively forbids this arrangement.

The rule of law and the limits of judicial power

Assume for the sake of argument that authorising ministers to overrule the Tribunal (and the Information Commissioner) would flout the rule of law. Still, if Parliament has chosen to authorise ministers to overrule the Tribunal then under our law and constitution the courts are bound by this choice. The rule of law requires judges to give effect to Parliament’s lawmaking choices even when those choices undercut the rule of law. Yes, the courts should be slow to conclude that Parliament has made a choice that undercuts the rule of law. But the duty of the court is to infer what Parliament has decided, a process of inference that centres on the statutory text in the context of enactment, including constitutional principles. We agree with Chamberlain that much “reading down” is consistent with Parliament’s authority (on the third line of cases he notes, one might read Anisminic more charitably, but it is undeniable that the case is often taken to license misinterpretation).

In an understated way, Wheatle and Masterman make out their own critique of Lord Neuberger (as does van Zyl Smit, who makes a case for mitigation not excuse; Tomkins and Chamberlain join our critique more directly). They outline at length the considerations with which Lord Neuberger should have engaged but did not, suggesting that if he had grappled with this detail, rather than talked in abstract terms about the rule of law, his argument would have been stronger – and would have avoided the force of our critique. We agree that Lord Neuberger was much too general and sweeping in his talk of the rule of law. In part that is why we criticise his judgment’s disinterest in Parliament’s actual decision to provide for an executive veto and abstraction from the detail of the statutory context. But none of the considerations that Wheatle and Masterman mention would justify taking s.53 not to permit ministers to act on their view of the public interest and to overrule the tribunal when they disagree with it. That was the obvious point of the section. The wording and context make very clear this was intended, as Tomkins and Chamberlain each note. As Lord Hoffmann pointed out at the launch of our paper, it is difficult to know what else Parliament could do to make its meaning clear other than to add “we really mean it!”

The rule of law sets standards (of clarity, prospectivity, etc.) against which Parliament may fall short. But the rule of law also sharply limits how judges may deal with statutes. Specifically, the positive law requires them to give effect to Parliament’s clear choice. And if judges fail to do this then they compromise the rule of law. And this is the case even if the statute in question compromises the rule of law. This is not to say that we should be complacent about the enactment of statutes that fail to respect constitutional principle. But the place for that argument, the remedy for that ill, is in Parliament.

The constitutional significance of Evans and the future of the rule of law

The wider significance of Evans is in the trend in judicial thought which it discloses. As Tomkins notes, this is not the first time courts have failed to see clearly the constitutional position of ministers or the importance of political accountability. The problem in Evans is not that the judges are party political, but the problem is political in a sense: viz. the majority’s wrongful assumption that there is no such thing as a constitutional problem that the judiciary cannot solve, which is not solved until they solve it. The case makes vividly clear how judicial techniques may be misused, to undercut the constitutional separation of powers, enabling courts to trespass into matters not properly theirs. We agree with Tomkins that the inevitable consequence of this trend is the politicisation of judiciary and the first casualty is the integrity of the rule of law.

For Wheatle and Masterman, our analysis wrongly stereotypes the courts as ‘merely unelected’ and unfairly denies their contribution to ‘constitutional dispute resolution’. It is unhelpful, they say, to portray ‘constitutional dispute resolution’ as a competition between courts and legislature; rather it is an interactive process in which statutes are interpreted and/or mediated, a process in which the rule of law and parliamentary supremacy, courts and Parliament, each have role to play. But recall what happened in Evans. Parliament had enacted a clear statute authorising ministers to overrule the Tribunal. The Supreme Court disapproved of the statute and then undercut it. In consequence, the status of section 53 is now highly uncertain and Parliament’s will has been flouted. In our view, this was clearly a challenge by (some) judges to fundamental constitutional principle. Wheatle and Masterman do not avoid this critique by deploying the term ‘constitutional dispute resolution’.   Statutes should be interpreted faithfully according to the intention of the enacting Parliament, not ‘mediated’ by courts; and, as the shaky reasoning and problematic consequences of Evans makes clear, it is a mistake to assume that it is always the courts rather than Parliament (or the executive) which vindicates the rule of law.

The startling majority judgments in Evans illustrate the continuing rise of a legal culture that is increasingly unable to distinguish the rule of law from the rule of courts. Our paper argued that the relevant changes in legal culture predated the HRA but that the HRA’s enactment has accelerated them. Interestingly, van Zyl Smit argues that while there are serious rule of law problems in the judicial use of s.3 of the HRA (requiring one to strive to interpret other statutes consistently with Convention rights), the motivation is not zeal for judicial supremacy but concern to avoid the problematic s.4 (authorising courts to declare legislation incompatible with Convention rights), which departs from the traditional judicial role. In some cases, it seems to us, judges have misused s.3 to change the law as they wish; at other times, they have relied on s.3 in order to avoid the risk and controversy of making a declaration. But it is not for the courts to decide to change the law to avoid controversy. The HRA is not optional any more than the FOIA is. And one does not get to expand the reach of s.3 because it seems more convenient than to have to turn to s.4.

Chamberlain extends our analysis by considering how the prospect of reform of the HRA (and exit from the EU) may also have played its part in leading the Supreme Court astray. As he explains, some public lawyers and judges have been hedging against reform of the HRA and or against Brexit by transposing their favourite grounds of challenge to the common law. This is worrisome, we say, not only because judges should not anticipate and aim to disarm possible repeal of legislation, but also because this approach risks expanding the scope and unsettling the application of these already problematic techniques. All this means that while HRA reform may contribute to parliamentary democracy, Parliament must remain vigilant to oversee and to discipline misuse of common law techniques. The future of the rule of law requires restoration of a legal culture in which judges distinguish between the rule of law and the rule of courts and refrain from advancing the latter at the cost of the former. In this project of restoration, lawyers and non-lawyers both have a part to play.

Richard Ekins
Christopher Forsyth