Judicial and Political Decision-Making: The Uncertain Boundary
The F.A. Mann Lecture, 2011
Jonathan Sumption Q.C.
One of the most significant constitutional changes to occur in Britain since the Second
World War has been the rise in the political significance of the judiciary, as a result of the
increasingly vigorous exercise of its powers of judicial review. I want, in the course of this
lecture, to ask a fundamental question about the relations between the judiciary and the
two political arms of the state, the executive and the legislature. How far can judicial review
go before it trespasses on the proper function of government and the legislature in a
democracy? This is not a new question. It has been debated for many years in the academic
literature. But it has never troubled practitioners, and rarely features in the judgments of
the courts. Even in the academic literature, the debate has suffered from a relatively narrow
focus on the experience of modern Britain. It needs, I think a longer historical perspective
and a broader geographical range.
The power of governments and its limitation by law, has been a controversial question since
at least the seventeenth century. But the modern history of this issue really begins with the
adoption of universal male suffrage by most western countries in the course of the
nineteenth century. The arrival of a broadly based democracy was invariably followed by
rising public expectations of the state: as the provider of basic standards of public amenity,
as the guarantor of minimum levels of security and, increasingly, as a regulator of economic
activity and a protector against misfortune of every kind. These expectations are still rising,
a point which is, I think, worth making at the outset of any discussion of judicial constraints
on the action of the state. The immense powers exercised by modern governments over
their own citizens have arisen almost entirely from the collective aspirations of the
population at large, aspirations which depend for their fulfilment on persistent intervention
by the state in many areas of our national life, and which no democratic politician can
ignore. It is no longer sensible to view this as a power-grab by ambitious ministers and
officials, as the opponents of the Crown did in the simpler world of seventeenth century
England and some commentators still do. The truth is that a powerful executive is inherent
in the democratic character of the modern state.
The proper role of the judiciary in constraining the action of the democratic state was a
question first addressed in France and the United States in the course of the revolutions
that engulfed both countries at the end of the eighteenth century. In both of them,
existential crises of the state made it necessary to reflect on the fundamental principles of
the constitution, and to ask how far the policies of the executive and legislative branches of
the state could properly be constrained by courts of law. What is interesting about the
experience of France and the United States is that it led them to diametrically opposed
conclusions, which colour the approach in both countries to this day.
France was the first country in the world to develop a coherent scheme of public or
administrative law. Yet successive French constitutions from 1799 to 1958 have been
characterised by a persistent hostility to judicial interference with the two other branches of
the state, on the ground that in a democratic constitution the popular will was the sole
source of legitimacy. Portalis, the leading draftsman of the Napoleonic codes, was
suspicious of all judge-made law and particularly objected to judicial review. “Juger
l’administration”, he said, “c’est aussi administrer”. Or, loosely translated, “judicial review of
government is tantamount to judicial government.” This sentiment, largely shared by other
founding spirits of the modern French state, explains why public law in France has always
been the exclusive domain of a separate hierarchy of administrative courts, culminating in
the Conseil d’Etat. Since its foundation in 1799, the Conseil d’Etat has gradually acquired the
characteristics of an independent court of law. But it originated as an internal organ of the
executive, and its membership is still drawn in part from the ranks of senior administrators
who are not jurists. The section du contentieux, which deals with public law litigation,
remains a great deal more deferential to the policy-making organs of the state than English
judges are. Until recently there was no French institution empowered to review the
constitutionality of an act of the legislature. The Conseil Constitutionnel, which was created
for this purpose by the constitution of the Fifth Republic, is a purely consultative body
comprising political appointees without legal training and all living ex presidents of the
Republic. The object, in the words of its godfather, General de Gaulle, was to avoid the “rule
of judges”, which the General and his principal adviser Réné Cassin regarded as one of the
more deplorable features of the constitution of the United States. De Gaulle was particularly
opposed to the idea of a French Supreme Court, enjoying the power to test legislative or
governmental action by reference to fundamental principle. “The only Supreme Court in
France”, he observed, “is the people”.
Whereas France has traditionally restricted judicial intervention in the workings of the state
because it was a threat to democracy, the United States originally embraced it for exactly
the same reason. The makers of the US Constitution were suspicious of democracy. They
were the heirs of a political revolution in which the powers of the British Crown had been
challenged in the name of the sovereign people. But like the conservative eighteenth
century Englishmen that they were, they sought to contain the wishes of the sovereign
people by a system of checks and balances which included entrenched judicial power. In his
contributions to The Federalist Papers, James Madison, the main author and advocate of the
Constitution, refused to use the word “democracy”. He regarded it as a term of abuse, an
invitation to religious bigotry, inflation, the abolition of debts, the redistribution of wealth
and what he compendiously called “other improper or wicked projects”. Echoes of this
tension between democracy and judicial intervention can be heard in the United States to
this day. The debate between the originalists and their opponents on the United States
Supreme Court is fundamentally a debate about the permissible limits of judicial lawmaking
in a democracy, where the law as declared by the Supreme Court would not necessarily
have obtained Congressional or electoral endorsement.
In one sense it can be said that the unspoken object of most modern democratic
constitutions is to treat the people as a source of legitimacy, while placing barriers between
them and the levers of power. One of these barriers is the concept of representation, which
filters out popular prejudice by vesting the ultimate power of decision in an elected political
class united by a body of shared values, which may sometimes be at odds with popular
sentiment. But another barrier is law, with its formidable bias in favour of private rights and
traditional social expectations, and a corps of professional judges to administer it who are
not accountable to the electorate for their decisions. France, like every other functioning
democracy, has adopted the first technique but rejected the second. The United States has
adopted both.
This contrast between the American and French approaches to judicial intervention, has
been drawn before. It was drawn, notably, by Alexis de Tocqueville, whose book Democracy
in America, written in the 1830s, remains to this day one of the most penetrating and
prophetic analyses ever written about the dilemmas of a democratic constitution. De
Tocqueville observed that the American judges enjoyed a degree of political power which
was unique among the societies of his own day. He attributed this partly to their power to
found their decisions on the Constitution, a source of authority superior to the ordinary law
that De Tocqueville regarded as inherently political. He also thought that it owed something
to the arcane and inaccessible sources of the common law, which enabled American judges
to cover their tracks more successfully than a French judge applying a codified system could
have done. De Tocqueville described the judiciary under a common law system as the
masters of a mysterious and prestigious science, comparable to the hereditary priests of
Ptolemaic Egypt. Armed with this advantage, the judges of the United States were able to
present as ancient legal wisdom that which was in reality modern political doctrine. De
Tocqueville considered the political role of American judges to be by its nature aristocratic,
and inherently opposed to the democratic element of the constitution.
“Men who have made a special study of the law [he wrote] derive from it certain habits of
order, a taste for due form, and an instinctive respect for the logical connection of ideas,
which naturally makes them very hostile to the revolutionary spirit and to the unreflective
passions of the multitude... This aristocratic character, which I hold to be common to the
legal profession everywhere, is much more marked in the United States and in England than
in any other country... The more we reflect upon all that occurs in the United States, the
more we shall find that the lawyers, as a body, form the most powerful, if not the only
counterpoise to the democratic element of the constitution... The lawyers secretly oppose
their aristocratic instincts to the democratic instincts of the people. They oppose their
superstitious attachment to what is old to the people’s love of novelty, their narrow views to
the people’s immense designs, their respect for due forms of decision-making to the people’s
contempt for rules, and their dilatory ways to the people’s impatience... There is scarcely any
political question in the United States that does not ultimately resolve itself into a judicial
question.”
In a spectrum extending from France at one extreme to the United States at the other,
where does Britain stand at the dawn of the twenty-first century?
De Tocqueville thought that English common lawyers shared the aristocratic suspicion of
democracy which he attributed to their American cousins. He was almost certainly wrong
about this in his own day, but he is at least arguably right today. There unquestionably is a
natural tension between democracy and some aspects of judicial review. The issue
admittedly arises only in a minority of public law cases. Most decisions on judicial review
concern the application of policy to particular cases. The complainant says that the policy
has not been fairly or rationally applied to him, or that it has not been applied to him at all.
This sort of situation presents no particular threat to democratic values. The potential
conflict arises when the challenge is to the propriety of the policy itself. These are cases
where it is said to be an excess or abuse of power, or irrational, or to be inconsistent with
some legitimate expectation or with rights guaranteed by the Human Rights Convention to
have such a policy at all.
The old orthodoxy on this subject was expressed by the Master of the Rolls Lord Greene in
an article written in 1944. “The function of the judiciary,” he said, “is to interpret and
enforce law.” It was “not concerned with policy”. In particular, it was “not for the judiciary
to decide what is in the public interest.” When these words were written, they were by and
large true. Four decades later Lord Diplock, who contributed as much as any man to the
development of English public law, neatly summarised the difference between judicial and
political decision-making in his speech in R v. Inland Revenue Commissioners ex p. National
Federation of Self-Employed and Small Businesses. Ministers, he said, were answerable to
the courts for the lawfulness of their acts. But they were accountable exclusively to
Parliament for their policies and for the efficiency with which they carried them out, and of
these things Parliament was the sole judge. Like many of Lord Diplock’s more oracular
pronouncements, this is not so much an answer as a restatement of the problem. Where
does law end and policy begin?
Practitioners seeking a coherent answer to this question would do well to turn first to the
judgment of Laws LJ in R v. Secretary of State for Education and Employment ex parte
Begbie, one of the few English decisions to confront the implications for democratic
legitimacy of judicial decisions on questions of policy. Mrs. Begbie claimed to have a
legitimate expectation that her daughter would continue to enjoy a state-assisted place at
an independent school, notwithstanding the abolition of the scheme upon the change of
government in 1997. She failed for a number of reasons. One of them was that her case
raised broader questions of what Laws LJ called “macro-policy”. He distinguished between
cases which raised, directly or indirectly, “questions of general policy affecting the public at
large or a significant section of it”, and cases affecting only the individuals concerned by
some particular application of policy. The difference was that in the former category, to
quash the decision on grounds other than irrationality would require the judges to “don the
garb of policy-maker, which they cannot wear”; while the latter can be resolved judicially
with “no offence to the claims of democratic power.” It seems to me that this is essence of
the matter.
Nonetheless, it is the experience of most practitioners and many commentators that the
uncertain boundary between policy-making and implementation has become more porous.
The Begbie principle is never overtly rejected, but neither is it consistently applied. The
tendency of the courts to intervene in the making of “macro-policy” has become more
pronounced. The whole process, moreover, is unduly influenced by the degree of judicial
aversion to the policy in question. The most problematical area is the broad category of
public law decisions about the abuse or potential abuse of statutory powers in cases where
administrative discretions are conferred in unqualified terms. The conferring of broad
general powers on public authorities is often unavoidable. It is simply impractical to
anticipate every possible eventuality in the drafting of primary legislation. In a famous
dictum in R v. Home Secretary ex parte Simms, Lord Hoffmann observed that although the
constraints on the exercise of Parliamentary sovereignty were ultimately political, not legal,
the principle of legality meant that Parliament must squarely confront what it is doing and
accept the political cost. Fundamental rights cannot therefore be overridden by general or
ambiguous words or, usually, without explicit provision being made for this result. This
principle had in fact been applied in both public and private law cases for many years before
Lord Hoffmann articulated it. I doubt whether any one would seriously quarrel with it. But it
does of course beg the question what rights and principles are to be regarded as so
fundamental that a power to depart from them cannot be conferred by general words.
Simms itself, as the House of Lords analysed it, was about access to justice, which would
probably feature in any one’s list of fundamental rights. But there has been a noticeable
tendency for the range of fundamental rights and principles to expand over the years, so as
to embrace some which seem a good deal less than fundamental. It has been held, for
example, to include the right to fish in tidal waters, the right of political pressure groups to
advertise on radio or television, and the right of litigants in person in receipt of income
support to bring legal proceedings without paying court fees. Many of the decisions of the
courts in this area have edged towards a concept of fundamental law trumping even
Parliamentary legislation.
However, the problem is broader than this, because an analogous principle can readily be
applied in cases which engage no right that is even arguably fundamental. This is because
the Simms principle is in reality no more than an emphatic form of a more general principle
of construction, namely that the more strange or repellent the suggested meaning of a
written instrument, the less likely it is to have been intended by its authors. It is not easy for
a judge to decide what is strange or repellent, except by reference to his own assessment of
the merits of the policy under review. Any process of statutory construction which is not
purely literal is therefore likely to start with a judicial instinct about what Parliament should
be assumed to have wanted. Inevitably, the question becomes: what ought a good and wise
Parliament to have wanted to achieve, and what did it need to enact in order to achieve it?
The search for an ideal Parliamentary intention, to be applied in the absence of sufficient
and admissible evidence of the actual one, is nominally an exercise in interpretation. But it is
in reality an inherently legislative exercise. It involves a judicial assessment of the very issues
that were before Parliament. In that assessment, the distinction suggested by Lord Diplock
between matters of policy and efficiency within the exclusive domain of Parliament, and
matters of law within the exclusive domain of the courts, tends to break down.
Let me illustrate these abstractions with a specific example. Section 1 of the Overseas
Development and Co-operation Act 1980, which remained in force until 2002, empowered
the Secretary of State to give financial assistance for the purpose of promoting the
development or maintaining the economy of any foreign country. By no stretch of the
imagination could this bland enactment be regarded as engaging any fundamental right or
principle. In 1991, the Foreign Secretary, Douglas Hurd, decided to provide £316 million of
development aid to Malaysia to help finance the Pergau Dam, a major hydro-electric power
project on the border with Thailand. The decision gave rise to intense public controversy,
partly because of opposition on ecological grounds to major dam projects, and partly
because the proposed assistance was alleged to have been informally linked to the sale of
British military aircraft to the Malaysian Defence Ministry. But in R. v. Foreign Secretary, ex
p. World Development Movement it was attacked on a different ground, namely that the
Pergau Dam project was uneconomic at the price which the contractors had quoted. There
were, it was said, a number of cheaper ways of providing electricity to the Malaysian
people. Indeed, the Overseas Development Agency had said as much in its advice to the
Foreign Secretary. The Foreign Secretary decided to proceed in spite of this advice. His
reason was that the British Government had promised the aid some years before, at a time
when the price had been lower, and he considered that it would be damaging to Britain’s
foreign relations to resile from a project on which the Malaysian Government had set its
heart. The Divisional Court might have been expected to say that the policy justification of
this particular decision was a matter for the minister, for which he was answerable to
Parliament. Instead, it quashed the decision. It accepted that the Foreign Secretary had
been entitled to take account of wider British economic and diplomatic interests and did not
suggest that he had acted irrationally. But the Court held that this was not development aid
at all. This was because, in the Court’s view, when the Act authorised assistance for the
purpose of promoting the economy of foreign countries, it meant only assistance for the
purpose of supporting economically sound projects, and this project was not economically
sound. Lord Justice Rose, delivering the judgment of the Court, said:
“It is not in my judgment possible to draw any material distinction between questions of
propriety and regularity on the one hand, and questions of economy and efficiency of public
expenditure on the other.”
This language might almost have been deliberately framed as a rejection of Lord Diplock’s
distinction between politics and law. In substance what the Divisional Court decided was
that this particular development grant was not a good idea. They therefore interpreted the
statute as limiting the power to grant development aid to projects that were a good idea.
Who was to decide what was a good idea? Naturally, the Court itself. The practical effect
was to transfer to the court the discretionary powers of the Secretary of State on a matter
of policy and the task of assessing the project’s merits. As it happens, Parliament’s view
about the merits of the Foreign Secretary’s decision was different. It subsequently approved
without demur a supplementary estimate in an appropriation bill, which reallocated the
available funds so as to allow the payments to Malaysia to be made anyway, along with
payments for two other projects which were thought to be open to the same objections.
The real interest of this decision is that it was manifestly based on a factor whose influence
is rarely acknowledged but often powerful, namely the judge’s views about the merits of the
underlying policy. The courts have many tools for quashing or delaying policy decisions
which they do not like, without necessarily treating them as contrary to any fundamental
principle. Statutes can be interpreted, as we have seen, as authorising only that which
seems to the court to be objectively wise; consultation exercises can be found inadequate
to address the potential disadvantages which the court discerns in the project; the means
used by the decision-maker can be found disproportionate to the what the court regards as
the only legitimate objective; the list of relevant factors which the decision-maker failed to
take into account may be highly sensitive to the court’s view of the potential objections; the
reasons advanced for a politically controversial decision, may be found wanting and the
decision accordingly irrational. In a lecture delivered in 2004, Lord Steyn observed that in
dealing with applications for judicial review on the classic common law grounds, “it is an
everyday occurrence for courts to consider, together with principled arguments, the balance
sheet of policy advantages and disadvantages.” As a description of what happens in
practice, this remarkably candid statement would probably be endorsed by every regular
practitioner in the Administrative Court. It is, however, not what the judges tend to say in
their judgments.
In some of these cases the presumption that Parliament cannot have intended to authorise
the decision in question is distinctly artificial. There is no escaping the fact that there are
issues on which the problem is not so much a lack of clarity in the expression of Parliament’s
will as a radical difference between the collective instincts of the judiciary and those of
politicians facing the usual electoral pressures. The fault lines can be most clearly seen in
the areas of immigration, deportation and asylum. These are subjects on which electoral
pressures are strong, which have generated over the years the largest single stream of
applications for judicial review. Part of the problem has been that the judiciary and the
executive are looking at the issue from different ends of the telescope. The judiciary’s
instincts are moulded by their experience of individual cases, many of which have involved
profound human tragedies to which no judge could be indifferent. By comparison,
politicians, policy-makers and electors are primarily concerned by the problem viewed
impersonally and en masse. But it clear that there is also a serious difference of sentiment
between the political community and the judiciary. In R v. Secretary of State for Social
Security ex parte Council for the Welfare of Immigrants, a majority of the Court of Appeal
found it impossible to believe that Parliament could have intended to authorise the removal
of all social security entitlements from asylum seekers who failed to claim asylum upon
entry into the United Kingdom. They therefore quashed regulations which had that effect.
Parliament evidently did not agree. It immediately passed fresh legislation authorising such
regulations in terms. Some might say that this was a vindication of the proper role of the
Courts. They were not prepared to allow a harsh policy to be followed by the executive on
such an issue until Parliament had authorised it in unmistakable terms. But another possible
conclusion is that the Court of Appeal’s view that Parliament could not have intended such a
thing always was unrealistic. It ignored the political background to the legislation and
underrated the level of Parliamentary concern about the effect of the UK’s relatively
generous level of social provision in drawing asylum-seekers across Europe to our shores.
Differences like these at one point became so intense that an attempt was made, which was
ultimately abandoned, to oust by statute the courts’ powers of judicial review over certain
categories of asylum decisions.
My purpose in making these points is not to express a personal view on either the decisions
in these cases or the merits of the policies under review. It is simply to point out that the
decisions of the courts on the abuse of discretionary powers are based, far more often than
the courts have admitted, on a judgment about what it is thought right for Parliament to
wish to do. Such judgments are by their nature political. By this I do not mean that the
judges who decided them were politically partisan, but simply that they were dealing with
matters (namely the merits of policy decisions) which in a democracy are the proper
function of Parliament and of ministers answerable to Parliament and the electorate.
The incorporation of the Human Rights Convention into English law has significantly shifted
the boundaries between political and legal decision-making in areas some of which raise
major political issues, such as immigration, penal policy, security and policing, privacy and
freedom of expression. It has also extended the scope of judicial review from ministerial and
administrative decisions to primary legislation. Few Convention rights are absolute. Most of
them are qualified in the Convention by reservations and exceptions on specified policy
grounds, so far as these are held to be “necessary in a democratic society” or some similar
phrase. Litigation founded on these rights almost always turns ultimately on the question
what inroads into them are justified in the public interest. This involves a difficult balance
between competing public interests, which is an inherently political exercise. By giving legal
effect to the Convention, however, we have transferred it out of the political arena
altogether, and into the domain of judicial decision-making where public accountability has
no place.
One of the most remarkable instances in recent times of an attempt by the judiciary to
transfer decision-making out of the democratic arena was the decision of the Divisional
Court in 2000 in R (on the application of Alconbury Developments Ltd.) v. Secretary of State
for the Environment, Transport and the Regions. The court made a declaration of
incompatibility in relation to the entire scheme of English planning legislation as it had stood
since the Town and Country Planning Act of 1947, on the ground that it conferred the power
of decision on elected local authorities, the Planning Inspectorate or the Secretary of State,
all applying planning policies laid down in general terms by the Secretary of State. In the
view of the Divisional Court planning consents engaged rights of property for which the
owner was entitled under Article 6 of the Convention to a judicial, not an administrative or
political decision. This judgment, if it had stood, would have removed from the sphere of
democratic policy-making and public accountability a class of decisions ranging from back
extensions in conservation areas to major airport developments, which directly affects
much of the population and arouses strong public feelings. Lord Hoffmann, concurring with
the unanimous decision of the House of Lords to overrule it, put at the forefront of his
reasoning the proposition that decisions about what the general interest requires are in
principle to be made by democratically elected bodies or by persons who are accountable to
them.
In Alconbury the availability of judicial review on the classic common law grounds was held
to be enough to protect the developer’s interest in his property. But it has to be said that
the general tendency of both the Strasbourg Court and the English courts has been to treat
Article 6 and other provisions of the Convention as requiring the acceptability of legislation
or executive policy to be determined by the Court itself, rather than by ministers subject
only to a judicial review of their procedural fairness and rationality. In International
Transport Roth GmbH v Secretary of State for the Home Department the Court of Appeal
considered a statutory scheme designed to deter road hauliers from allowing clandestine
entrants into the United Kingdom to hide in their vehicles. The scheme provided for the
imposition of heavy penalties unless the carrier could show that he had an effective system
in place for preventing clandestine entry and that he had no reasonable grounds to suspect
that clandestine entrants were present. The majority of the Court of Appeal held that the
scheme was inconsistent with Article 6 and with Article 1 of the First Protocol. They came to
this conclusion after an elaborate weighing up of the pros and cons of the policy in question
in order to decide whether it was really necessary or objectively fair. They rejected the view
expressed in the dissenting judgment of Laws LJ that even in the context of a Convention
right this was an issue on which the balance between competing policy considerations was a
matter for the legislature.
The real problem about the Human Rights Convention is not the general principles stated in
it, which would be accepted by almost every one. The problem is that the case-law of the
Strasbourg Court has derived from them by a process of implication and extension a very
large number of derivative sub-principles and rules, addressing the internal arrangements of
contracting states in great detail. Many of these sub-principles and rules go well beyond
what is required to vindicate the rights expressly conferred by the Convention. In addition,
the Strasbourg court has taken it upon itself to decide not only whether contracting states
had proper institutional safeguards for the protection of human rights, but whether it
agreed with the outcome. A striking example is McCann v. United Kingdom, which arose out
of the death in Gibraltar of three members of the Provisional IRA at the hands of the
security forces. The Strasbourg court held that the judicial inquest in Gibraltar was a
perfectly satisfactory procedure for determining whether Convention rights had been
infringed. But it nevertheless upheld the complaint because it disagreed in a critical respect
with the inquest’s findings. The result of this approach has been to shrink the margin of
appreciation allowed to contracting states to almost nothing.
One of the most striking features of modern human rights theory is its claim to universal
validity. The European Convention has been construed as attributing rights to humans
simply by virtue of their humanity, irrespective of their membership of any particular legal
or national community. In this spirit, the Strasbourg Court endeavours not only to interpret
the Convention but to apply it in a uniform manner throughout the 47 states which
subscribe to it. This approach conflicts with some very basic principles on which human
societies are organised. National communities are diverse, even within a region such as
Europe with a strong common identity. Their collective values are the product of their
particular culture and history. Rights are necessarily claims against the claimant’s own
community, and in a democracy they depend for their legitimacy on a measure of
recognition by that community. A principled objection to extreme exercises of state power,
such as military government, torture or imprisonment without trial is no doubt common to
every state party to the Convention. But the Strasbourg Court has treated the Convention
not just as a safeguard against arbitrary and despotic exercises of state power but as a
template for most aspects of human life. These include many matters which are governed
by no compelling moral considerations one way or the other. The problem about this is that
the application of a common legal standard works breaks down when it is sought to apply it
to all collective activity or political and administrative decision-making. The consensus
necessary to support it at this level of detail simply does not exist.
Extremes apart, political communities may and do legitimately differ on what rights should
be recognised. Even where they recognise the same rights, they frequently differ on what
those rights imply or how effect should be given to them. Let me illustrate my point by
reference to one of the most emotionally charged issues of the past half-century, the laws
governing abortion. The United Kingdom was one of the first western countries to liberalise
its abortion laws, and the resultant settlement has commanded broad consensual support
ever sense. In other countries, the process has been a great deal more controversial. In Roe
v. Wade in 1973, the United States Supreme Court decided that the constitutional right of
privacy under the due process clause of the Fourteenth Amendment implied the right of any
woman to terminate her pregnancy up to the point at which the child was viable outside the
womb, possibly as late as seven months. The decision remains intensely controversial to this
day, and polls suggest that it is rejected by at least a third of Americans. But it established in
the United States one of the most liberal abortion regimes in the western world. In 1988,
the Supreme Court of Canada came close to the same model. It held in R. v. Morgentaler
that a federal statute regulating abortion violated the right of women to personal security
under the Canadian Charter of Rights and Freedoms, because (among other reasons) it
required that one of a number of permissible grounds for abortion should be certified by a
medical committee at a designated hospital. The Court left open the possibility of a
somewhat greater degree of statutory regulation than Roe v. Wade had done, but attempts
to pass such legislation have so far been unsuccessful. In 1975, two years after Roe v. Wade,
the German Constitutional Court reviewed the history of the issue in Germany as well as
recent changes to the law in Britain and the United States, and concluded that the right to
life and to respect for human dignity guaranteed by the Basic Law of the Federal Republic
required the criminalisation of all abortion in the absence of compelling medical grounds.
More recently, in 1992, the Constitutional Court has modified its earlier position by holding
that abortion in the absence of compelling medical grounds, although illegal, should not be
subject to criminal sanctions. In Ireland, the combined effect of the Constitution,
Parliamentary legislation, judicial decisions and three referenda is that abortion is available
only in cases where the life of the mother would be endangered by the continuation of her
pregnancy to term. Should we be dismayed that such differences of opinion are possible? I
think not. In all of these cases, the issue turned mainly on the relative weight to be attached
to the rights of the mother and those of the unborn child. This is a profound moral dilemma,
involving the evaluation of competing public policies. It is a question which on which the
collective values of even the most liberal and civilised societies can legitimately differ.
Moreover, it may in some countries be affected by purely national considerations which are
nevertheless of great importance. In Germany, for example, the background to the 1992
decision of the Constitutional Court was the intractable political and social problem arising
from the absorption of the former East Germany, where abortion had previously been
permitted more or less on demand. These cases are reminders of the complexity of the
issues with which human rights law is concerned and of its extreme sensitivity to differences
of political and moral culture. They also underline one of the great unspoken problems
about human rights law, which is that very many human rights issues are in reality not issues
between the state and its citizens. They are issues between different groups of citizens,
whose resolution by democratic processes will not necessarily lead to the same answer
everywhere. Yet in the course of its admittedly obscure judgment in A, B and C v. Ireland the
Grand Chamber of the European Court of Human Rights appears to have thought that
because the great majority of European states have since the 1970s given qualified primacy
to the health and wellbeing of the mother over the interests of the unborn child, it was not
necessarily open to Ireland to take a different view. It is clear from this judgment, so far as
anything is, that if the Strasbourg Court had found a European consensus about when life
can be said to begin, they would have declared abortion in the interest of the health and
well-being of the mother to be a human right and imposed it on Ireland. As it was, the only
reason why Ireland’s highly restrictive abortion laws were judged compatible with the
Convention was that they did not prevent Irish women from travelling to England for an
abortion.
Even where the case for recognising a Europe-wide human right is strong, the varying
political and constitutional arrangements of different countries will mean that the same
rights and the same derogations are not equally necessary or desirable in all places, and will
not always require the same measures to make them effective. There is no reason why the
protection of Convention rights should necessarily require the same measures in a country
like the United Kingdom, which has for many years enjoyed a strong tradition of public
service, a high degree of participation in public life, functioning democratic institutions and
an independent judiciary, as they do in countries like, say, Romania, Russia or Turkey.
Sir William Wade once described the case-law of the 1940s and 1950s on the judicial control
of governmental acts as a ‘dreary catalogue of abdication and error’. His object was to point
up the contrast with the age of judicial activism which followed. There clearly was a weather
change in the 1960s, and it is, I think, worth asking why it should have happened just then.
The traditional explanation, which will be found in Wade’s book as well as in other standard
textbooks, is that it was provoked by the rapid expansion in the powers of the executive. I
do not myself think that this is a sufficient explanation. The powers of the executive have
been expanding for more than two centuries, and the implications have always been well
understood. Chief Justice Hewart’s celebrated book, The New Despotism, was published in
1929. The real reason for the growing significance of judicial review since the 1960s seems
to me to have been, not the growing power of the executive, but the declining public
reputation of Parliament and a diminishing respect for the political process generally. The
classic Diceyan analysis of the sovereignty of Parliament, according to which power filtered
up from the people through their representatives in the House of Commons to determine
the policies and fortunes of ministers, held the field for many years. But over the past halfcentury its influence has declined, and in the process the political significance of judicial
review has increased. There is a widespread perception that Parliament is no longer capable
of holding ministers or officials to account, because party discipline enables ministers with a
majority in the House of Commons to control it. Characteristically, it was Lord Steyn who
voiced publicly a concern which other judges have left unspoken. His speech in Jackson v
Attorney General, opens with a robust declaration that
the power of a government with a large majority in the House of Commons is redoubtable.
That has been the pattern for almost 25 years. In 1979, 1983 and 1987 Conservative
Governments were elected respectively with majorities of 43, 144 and 100. In 1997, 2001
and 2005 New Labour was elected with majorities of respectively 177, 165 and 67. As Lord
Hailsham of St Marylebone explained in The Dilemma of Democracy, the dominance of a
government elected with a large majority over Parliament has progressively become greater.
This process has continued and strengthened inexorably since Lord Hailsham warned of its
dangers in 1978.
I cannot be the only person who feels uncomfortable about the implicit suggestion that it is
the function of the judiciary to correct the outcome of general elections. But Lord Steyn’s
statement also seems to me to reflect a rather short historical perspective and a
fundamental misunderstanding of the political process. For the past three hundred years, a
dependable majority in Parliament has been a condition of any ministry’s right to hold
office. Ministers have controlled the House of Commons ever since the administration of Sir
Robert Walpole in the early eighteenth century. Far from increasing inexorably over the past
generation, as Lord Steyn suggested, the degree of ministerial control over the House of
Commons has if anything declined in recent years. Departmental committees of the House
of Commons have proved to be a moderately effective method of holding ministers and
public officials to account, and a highly effective method of exposing their inadequacies to
politically damaging publicity. Even on the floor of the House, where proceedings are
naturally more partisan, MPs have defied the party whip more often and in greater numbers
in the last two decades than at any time since the war. Individual ministers are vulnerable to
Parliamentary sentiment, however large the government’s majority, as we have discovered
within the last month. In 1979, the government of Mr. Callaghan lost a vote of confidence in
the House of Commons for the first time since 1924. Studies of Parliamentary behaviour,
such as those of Professor Cowley, show that today’s MPs are far more fractious than their
predecessors. The House of Commons was in fact at its most docile and compliant in the
face of the whips in the 1950s and early 1960s, interestingly enough the very period when,
according to Sir William Wade, the judges were at their most docile and compliant in the
face of ministers. The accountability of ministers to Parliament has clearly varied in its
intensity and has always been imperfect. But it is wrong to dismiss it as nominal or
insignificant, or as falling below some earlier ideal, or as warranting in itself a higher degree
of accountability to the courts.
Nor is it true that party discipline undermines the democratic credentials of Parliament.
Political parties are machines for winning elections. Their power over their MPs depends on
the perceived need for a candidate to have party endorsement at the polls. This in turn
reflects the long-standing propensity of most voters to choose parties rather than
individuals. But political parties, although generally sharing a common political outlook, are
unruly coalitions between shifting factions. They have always mutated in response to
changes in public sentiment, in the interest of winning elections. The last two decades in
particular have seen major changes in the tone and principles of both major parties. In this
way, modern political parties have proved to be an effective means of mediating between
those in power and the public from which they derive their legitimacy. They are essentially
instruments of compromise between a sufficiently wide range of opinion to enable a
programme to be laid before the electorate with some prospect of being accepted. Political
decision-making is often characterised by a measure of opacity, fudge, or even irrationality.
This is not because politicians are intellectually dishonest, but because opacity, fudge, and
irrationality are often valuable tools of compromise, enabling divergent views and interests
to be accommodated. The result may be intellectually impure, but it is on the whole in the
public interest. By comparison law, with its transparency, its analytical consistency, and its
absoluteness, is a poor instrument for achieving accommodation between the opposing
interests and sentiments of the population at large.
None of this is intended to suggest that Parliamentary accountability is enough, or that
judicial review is unnecessary. What it is intended to suggest is that Parliamentary scrutiny is
generally perfectly adequate for the purpose of protecting the public interest in the area of
policy-making. It is also the only way of doing so that carries any democratic legitimacy. In
any judicial review of government policy, different groups will of course applaud or
denounce the actual result, depending on what they think about the policy in question. To
single issue pressure groups, public law is politics by other means. To members of the public
who are hung up about dams, development policy or the arms trade, decisions like the one
in the Pergau Dam case are admired because they appear to introduce a higher morality
into public decision-making, untrammelled by the impurities of the political process. The
attraction of judicial decision-making is that it is animated by a combination of abstract
reasoning and moral value-judgment, and the decision imposed by the judiciary’s plenitude
of power to declare and enforce law. To some, this will seem more straightforward than the
messy compromises required to build a political consensus. However, for those who are
concerned with the proper functioning of our democratic institutions, the judicial resolution
of inherently political issues is difficult to defend. It has no legitimate basis in public consent,
because judges are quite rightly not accountable to the public for their decisions.
The corollary is that if it is perceived that judges are in fact reviewing the merits of
legislation or executive policy, there will be strong and continuing pressure for some kind of
democratic input into their selection, either directly by way of legislative confirmation of
their appointment, or indirectly by conferring on the executive a greater measure of
influence in the appointments process than they have now. The judiciary cannot realistically
expect to participate in the process of political decision-making in a democratic constitution,
while remaining immune from any kind of democratic influence over their selection.
Personally, I think that this would be a very unfortunate outcome. Political input into the
selection of judges would not make them more accountable for what they did after their
appointment. It would merely politicise the bench, as it has done in the United States. In the
process, it would undermine the reputation and perceived independence of the judiciary.
This would be a high price to pay for measures that would actually contribute very little to
reducing the democratic deficit. We would do better to sort out the law which judges
administer.
This will not be easy, because it is genuinely difficult to separate the determination of a
policy’s lawfulness from an assessment of its merits. It requires a large measure of restraint
that can only come from the judges themselves. The traditional word is ‘deference’ which,
as others have pointed out, has unfortunate overtones of forelock-tugging cravenness. But
it is a perfectly acceptable word, so long as one remembers that the judge is not deferring to
the minister. He is deferring to the constitutional separation of powers which has made the
minister the decision-maker, and not him. The courts already, by and large, observe this
convention in certain areas of policy-making. The classic examples are decisions on foreign
affairs and national security. Similarly, the courts have sought to avoid imposing on the
executive duties which have significant budgetary implications, since this would impinge
upon the Parliamentary monopoly of supply and appropriation. In Countryside Alliance v
Attorney General, Lord Bingham proposed that a large discretion should be allowed to a
national legislature enacting laws on essentially moral grounds, even in the context of the
Human Rights Convention. Rejecting a challenge to the Hunting Act 2004, he observed that
“the democratic process is liable to be subverted if, on a question of moral and political
judgment, opponents of the Act achieve through the courts what they could not achieve in
Parliament.” Recently, Lord Hope, delivering the leading judgment in the Supreme Court in
AXA General Insurance Ltd. v. The Lord Advocate, applied this dictum to legislation of the
Scottish Parliament about liability for industrial pollution, referring to the “advantages that
flow from the depth and width of the experience of its elected members and the mandate
that has been given to them by the electorate.”
It has sometimes been said that the Court’s reticence in these particular areas of policymaking is attributable to a lack of justiciable standards by which to assess them, or to the
limitations of the court’s expertise, or to the indirect impact which an adverse decision may
have on interests not represented before the court. There is something in these points, but
the problem about all of them is that they tend to reduce to the level of a practical
impediment what is actually an important issue of principle. In those areas of policy-making
where the courts have traditionally been reticent about interfering, much the most
compelling reason for their reticence is that by long-standing constitutional convention they
fall within the special domain of the executive or the legislature. In the interests of
democratic accountability, there must be a case for generalising this approach across the
whole range of governmental activity, where the real issue is the appropriateness of the
policy choices made by a different branch of the state. It is neither coherent nor satisfactory
for the courts to identify a number of special areas where angels should fear to tread, rather
than identifying the underlying principle and applying it generally.
The usual answer to this is that the judges are only doing what Parliament has required
them to do. This is of course true in cases governed by the Human Rights Convention.
Parliament has required judges to apply the Convention and to do it with due regard to the
decisions of the Strasbourg Court. It is less obviously true in cases which turn on common
law principles of judicial review, where Parliamentary authority is at best implicit and at
worst non-existent. But I am not sure that Parliamentary authority is really a good enough
answer in either category. Parliament may do many things which undermine the democratic
element of our constitution. It would be foolish to pretend it is not undermined, simply
because Parliament has ordained it. Parliament could, for example, lawfully suspend an
imminent general election, as it did in 1940. It could in theory confer power on a dictator, as
the French National Assembly did in the same year. It may cede part of its constitutional
function of representing the democratic will, by providing for some kinds of policy decision
to be made by bodies which are not accountable to it, as it did in 1972 in favour of the
institutions of the European Union. The difference between the treaties constituting the
European Union and the Human Rights Convention is that one can properly speak of the
European Union as a pooling of sovereignty in relation to certain matters, in much the same
way as the Act of Union with Scotland was a pooling of sovereignty in relation to everything.
By comparison our adherence to a Convention whose meaning is highly elastic and
dependent on policy formulated by a supra-national judicial tribunal, is not in any
meaningful sense a pooling of sovereignty. It may or may not be a good idea. But there is no
point in denying that it removes important areas of policy from the domain of democratic
accountability, whether at national or supra-national level.
In a democracy with an uncodified constitution, there is much that depends not on law, but
on a broader concept of legitimacy. This involves an instinctive assessment of the limits
beyond which law cannot expect to carry moral authority in the face of broadly accepted
conventions about public decision-making. Public law ought in principle to respect the
conventional limitations on judicial action, because they are critical to the functioning of a
democratic state. The problem in cases governed by common law principles of judicial
review is that they do not do it on a sufficiently principled or consistent basis. The problem
in cases governed by the Human Rights Convention, is that the Courts are frequently
precluded from respecting the proper function of Parliament as a representative body and
of ministers as officers answerable to Parliament and the electorate. The reduced role in our
constitution of public accountability for questions of policy is just as problematic whether
the judges who give effect to it act voluntarily or involuntarily.
English judges have traditionally been shy about resorting to large constitutional theories to
explain their judgments. This is consistent with the pragmatic and undemonstrative
traditions of English law, and its distaste for rhetoric and all-embracing propositions.
However, the reticence of English judges about the constitutional implications of their
decisions has had unfortunate consequences. It has meant that English public law has not
developed a coherent or principled basis for distinguishing between those questions which
are properly a matter for decision by politicians answerable to Parliament and the
electorate, and those which are properly for decision by the courts. It has meant that over a
period of time judicial decisions have brought about significant constitutional changes,
which were not necessarily noticed or intended by their authors. It has also meant that the
wider constitutional issues arising from judicial decisions, because they are not publicly
acknowledged, are not matters of public debate. There is surely a case for saying that
constitutional change, where it occurs, should happen on purpose and after proper national
debate about its wider implications. It should not come about by accident and without any
acknowledgment that it is happening at all.