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Constitutional Spotlight:

In Constitutional Spotlight, Judicial Spotlight, Parliamentary Spotlight on September 23, 2009 at 12:20 am

To what extent will the creation of a new British Supreme Court cause problems in the relationship between Parliament and the judiciary?

This essay will argue that it impossible to make a firm judgement over to what extent the creation of the new British Supreme Court will cause “problems” in the relationship between Parliament and the judiciary. Whether the judiciary will become more activist (causing tensions with Parliament) depends on a host of other factors, including the kind of legislation enacted by future Parliaments and the composition of the Court. It is important to note that the Supreme Court has no new powers, suggesting that the judges may not have the ability to become more activist; however this essay’s conclusion will be that a much more important factor in increasing tension between Parliament and the judiciary is the Human Rights Act, since judges can reinterpret legislation to ensure consistency. The introduction of the Supreme Court may hasten this process, since there is some evidence that the Law Lords have been more conservative than lower courts in their challenging of the executive and legislature, perhaps due to their involvement in the legislative branch of government. Finally this essay will question whether it is appropriate to regard tension between the judiciary and Parliament as problematic, arguing that robust judicial review is profoundly democratic (on the right, “partnership” conception of democracy) and so most welcome.

To start, what “problems” could conceivably be caused by the creation of a new British Supreme Court? It seems that the fear is the erosion of Parliamentary sovereignty, which Parliament’s website calls “the most important part of the UK constitution”. Parliamentary sovereignty means that Parliament is “the supreme legal authority in the UK, which can create or end any law”. “The courts cannot overrule its legislation.” The functions of Parliament and the judiciary are strictly separated; Francis Bacon in one of his essays likened judges who drew authority from outside the text of the law as being like the “Church of Rome”, who illegitimately did not draw authority from the Bible alone. “”Judges ought to remember that their office is jus dicere, and not jus dare: to interpret law, and not to make law or give law.” (This narrow view of the proper role of the judiciary in a democracy will be challenged later on in this essay.) Thus Lord Neuberger fears that the new Supreme Court “may start to assert itself” – start making law, not just interpreting it. The justices may “arrogate to themselves greater power”, as the American Supreme Court did in the 1803 case “Marbury vs Madison” when they for the first time declared a part of a statute (the Judiciary Act of 1798) unconstitutional. That the Supreme Court can in effect make law was demonstrated in the 1973 ruling Roe v Wade, which established the right to have an abortion up to the point of viability. Though this judgment was not technically a new law, but rather an interpretation of the Fourteenth Amendment, it is in some ways more binding than a law, since it can only be struck down by another Supreme Court ruling, and the composition of the Supreme Court (since justices are appointed for life) is much slower to change than that of Congress.

Why does Neuberger think the Supreme Court would threaten the traditional territory of Parliament? He mentions the “law of unintended consequences”: the judges’ new titles, statuses and building may inflate their sense of importance and cause them to overstep their authority, creating “a real risk of confrontation between the judiciary and the executive”. Lord Turnball and Lord Falconer agree, saying that the creation of the Supreme Court will “enhance the confidence of the judiciary”. However, perhaps they are overstating their case. Their argument seems to be based on little more than speculation about the psychological effects of a new setting and title. Much depends on the composition of the Supreme Court, which will ultimately determine its propensity to cause tension in its relationship with Parliament. Lord Phillips, the Supreme Court’s first president, seems to take a relatively conservative view of the role of the judiciary, saying of the prospect of judicial activism: “I don’t think it’s likely”. Moreover, there will be little or no scope for judicial activism in the sphere of criminal law, since it is envisaged that the Supreme Court will hear criminal appeals very rarely, if at all, due to the justices’ lack of criminal expertise. The British Supreme Court has also been given no new powers; like the Law Lords, and unlike the American Supreme Court, they cannot invalidate statutes created by Parliament.

However, just because the new British Supreme Court has no additional powers does not mean that it does not have the capacity to become increasingly activist; such powers were given to the judiciary by the 1998 Human Rights Act, which is a much more significant reason why there may be future problems in the relationship between Parliament and the judiciary. The Human Rights Act gives the judiciary the power to issue a “declaration of incompatibility” between the Act and statute passed by Parliament; however this does not invalidate the statute. Parliamentary sovereignty is upheld because it then is up to Parliament to amend the legislation; the declaration has no legal force. For example, on 14 Oct 2005 in R (on the application of Sylviane Pierrette Morris) v Westminster City Council & First Secretary of State, the Court of Appeal ruled that section 185(4) of the Housing Act was incompatible with Article 18 of the Human Rights Act. In August of the following year, nothing had been done to remedy the incompatibility. Thus, the opportunities for judicial activism afforded by declarations of incompatibility are minimal. However, their power to reinterpret legislation so that it is compatible with the HRA is extremely significant. In 2004 the Law Lords ruled that the phrase “surviving spouse” in the Rent Act had to be interpreted as including the survivor of a gay couple, giving a same-sex partner “the same rights to take over a protected tenancy as the survivor of a married or cohabiting couple”: Tom Zwart says that this ruling was “an amendment [to the law] in anything but name”. The tension in the relationship between Parliament and the judiciary due to the HRA was also evident in 2001 when the courts interpreted the Youth Justice and Criminal Evidence Act 1999 as allowing rape victims to be cross-examined over their sexual history where this was necessary for a fair trial, despite Parliament having included a “rape shield” provision to prevent such lines of questioning. In Daly, 2001, before plans for the new British Supreme Court had even been announced, the Law Lords established the principle that it was for the courts to determine whether “relevant weight” had been accorded to “interests and considerations”: a principle of proportionality, giving future courts much greater scope for review. “Judicial review had therefore moved on. At least where rights are affected, it is now concerned with substance [traditionally the domain of Parliament] as well as legality and procedure” (Diana Woodhouse in “Law and Politics”). Thus there is no need for or likelihood of the Supreme Court Justices “arrogating to themselves greater powers”, as Neuberger fears: they have, post-HRA, what is in effect significant law-creating powers at their disposal.

Still, there may be some substance behind Neuberger’s fears. The Law Lords, to date, have not been as bold as they could have been in challenging the executive and legislature. When the case of Shafiq ur Rehman came before the Law Lords in 2001, the Special Immigration Appeals Commission had ruled that the Home Office was not justified in deporting him. (His alleged involvement in a Kashmari terrorist organisation was thought to be a threat to national security.) However, the Law Lords overturned this judgement, saying that “the judicial arm of government [needs] to respect the decisions of ministers of the Crown on the question of whether terrorist activities in a foreign country constitutes a threat to national security”. The Law Lords, in what was described by many commentators as a disappointingly conservative ruling, also overturned the declaration of incompatibility made by the High Court in Alconbury. This case was brought by a number of developers who alleged that, since the Secretary of State for the Environment, Transport and the Regions has responsibility for both planning policy and individual planning decisions, they were denied the right to a fair and impartial hearing provided for them by Article 6 of the HRA. Cases such as these lead Diana Woodhouse to conclude that “the High Court is more liberal in its protection of rights than appeal courts”, because of the Law Lords’ “concern not to disrupt government policy”. If this is correct, and Rehman and Alconbury certainly indicate that it is, the creation of the new British Supreme Court could result to a significant extent in more judicial challenging of the legislature and executive – because it is now a separate body, like the High Court – and therefore more tension in the relationship between Parliament and judiciary.

However, this essay’s topic is whether the creation of the British Supreme court will cause problems in the relationship between Parliament and judiciary. Thus the question is raised: are tensions in this relationship problematic? It seems that increased judicial review concerns people for two main reasons: firstly, that it represents a break with tradition, and secondly, that it is undemocratic. The first kind of fear is evident in Neuberger’s assertation that “you muck around with the British constitution at your peril”. Any possibility of the judiciary being more assertive in challenging Parliament should be regarded with caution and suspicion, because robust judicial review is “foreign to the British system”. However, this argument fails to persuade on two counts. Firstly, judicial involvement in what is effectively law- and policy-making has been a feature of the British political system since the passing of the Human Rights Act in 1998, as has already been demonstrated. A further example of the transfer of power from the government to the judiciary is that, following a ruling from the Strasbourg Court in 2000, the responsibility for setting the minimum tariff for murder committed by juveniles passed from the Home Secretary to the Lord Chief Justice. Secondly, even if judicial review were “foreign”, that does not constitute a decisive objection against it. Unfortunately, a thorough examination of (so called small-c) conservatism is beyond the scope of this essay, though a few doubts will be expressed. Could it not be a form of the well-documented phenomenon of “status quo bias”, where people (irrationally?) are disproportionately in favour of structures and practices that actually exist? Does this bias towards the already existing not warp our politics by ensuring that new, so-called “radical” ideas are not given proper consideration? Take drug prohibition. Many commentators have argued that the best way of dealing with drug use and addiction is not to impose criminal sanctions on users, but rather to decriminalise or even legalise drugs. A 2002 comment piece in the Guardian claimed that the war on drugs could never be won, and it was “time for a new approach”. The same author wrote a year later that ““Hounding hundreds of thousands – indeed millions – of young people with harsh criminal penalties is no longer practicable or desirable.” This view is supported by the experience of Portugal; since decriminalisation, illegal teenage drug use has fallen, the number of deaths from heroin has been cut by more than half, and the number of addicts registering for treatment programmes has more than doubled. Yet the alternatives to prohibition are barely even mentioned by Labour or Conservative politicians, who seem to repeat the same message over and over again, like a broken record: “we remain determined to crack down on drug-related crime and the harm it causes to communities….robust action is ensuring drugs are being taken off the streets” (Home Office Minister Alan Campbell). The author of the aforementioned articles was none other than David Cameron. His rhetoric seems to have been toned down greatly since he became Tory leader; does this reflect an awareness of the “status quo bias” of the electorate? This essay is not necessarily arguing that drugs should be legalised, but just that the merits of different policy choices should be fairly considered, free from “status quo bias”. What is true for drug legislation is no less true for the role of the judiciary; assertations like “you muck around with the British constitution at your peril” do not substitute for proper argument about the judiciary’s role.

The second ground for opposing an increase in the scope of judicial review is that it is (allegedly) undemocratic. Dworkin says that “almost everyone assumes that democracy means equal voting power among competent adults, that majority rule is therefore the nerve of democracy, and that any failure in majority rule is undemocratic”. If this equation of democracy and majority-rule is correct, then it is certainly undemocratic for the unelected, unrepresentative judiciary to have any policy and law- making role, the responsibility of our elected representatives in Parliament. Moreover, the new head of the Supreme Court, Lord Phillips, professes to be unmoved by public opinion. However, Dworkin seems to be correct in rejecting this “majoritarian” conception of democracy: that “a state is democratic…to the degree to which government…pursues the policy that is actually favoured by the largest number of citizens at the time”. This view does not allow that there is anything undemocratic about 51% of citizens ruling as a permanent majority, ignoring the wishes of the other 49% – the “tyranny of the majority”. Instead, he adopts a “partnership” conception of democracy: that “institutions are democratic to the degree that they allow fellow citizens to govern themselves collectively through a partnership in which each is an active and equal partner”. Since ordinary citizens have no say in judicial decisions, it may seem far-fetched to suggest that a strengthened judiciary facilitates self-rule. However, the judiciary may be essential to check the tendency of Parliament to restrict the liberties necessary for citizens to be “active and equal partner[s]” in governance. Diana Woodhouse explains why: “The courts are concerned with the protection of individuals and their rights. Governments are mainly concerned with broader issues of national interest, economics, politics and , of course, their popularity at the ballot box.” An instance of the judiciary’s protection of human rights against the wishes of an overbearing government is the Law Lords’ June 2009 decision that those foreign and British terror suspects subject to control orders must be allowed to know the evidence against them. Therefore robust judicial review, if it ensures (through its protection of basic rights) that citizens can participate in governance as free and equal citizens, is profoundly democratic.

Thus it is an error to construe tensions between the judiciary and Parliament as “problems”, as this essay’s title seems to do. Their different priorities mean, as Diana Woodhouse argues, that “the concerns of ministers and judges will, at times, collide… there is no harm in this. Indeed, there should be a tension between these two arms of government.” It remains to be seen whether the creation of the new British Supreme Court will increase such tension; for who knows how authoritarian the next Parliament will be, filled as it is likely to be with Tories. The Tories have also indicated that they will attempt to limit the scope of judicial review by abolishing the Human Rights Act and replacing it with a British Bill of Rights, which will come with “guidance notes” to tell judges how it should be interpreted. Therefore the extent to which the creation of the new Supreme Court will cause tension cannot be accurately ascertained, dependent as it is on so many other factors.

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