Who’s the master now?

8 April 2011 by Adam Wagner

The Master of the Rolls Lord Neuberger is either the busiest judge in England or relies heavily upon his assistant John Sorabji for his consistently thoughtful and excellent speeches. Either way, he has given another fascinating speech. Who are the masters now?

The question posed in the title is paraphrased from one asked in Parliament in 1946, which itself paraphrased Humpty Dumpty (see para 3). Neuberger used the second annual Lord Alexander of Weedon lecture (Lord Philips gave the first) to speak about the topical but, as I have posted, slippery issue of Parliamentary sovereignty. So, who is the master: the unelected judge or the elected politician?

Neuberger is of the firm view that the buck stops at Parliament, pure and simple. It is almost (note the “almost”) impossible for courts to overrule Parliament:

even the strongest advocate of limiting Parliamentary authority must accept that the courts could only overrule Parliament in wholly exceptional cases. Given the absence of a written constitution, it seems very hard to identify with clarity and consistency the circumstances in which the courts could take such a course. It is therefore difficult to see how there would be perceived legitimacy in the courts overruling Parliament; and perceived legitimacy is of the essence where there is no written constitution.

Moreover, in our political system if judges were to overrule Parliament they must have “been expressly given that right by the people acting through their democratically elected representatives”.

What of the rise of human rights and European Community law? Some have argued in recent years that unelected judges have too much power due to these legal systems being imported to our domestic courts. Neuberger is unconvinced:

While our constitutional settlement has been in one of its periodic reform phases over the last two decades, the idea that Parliament is no longer legally sovereign and that the judiciary, whether at home or in Strasbourg, are the masters now is quite simply wrong.

He goes on to discuss the now infamous hunting ban case, R (Jackson) v Her Majesty’s Attorney-General. Some have argued that the courts were considering in that case the basic legality of an act of Parliament, which does sound like a challenge to Parliamentary sovereignty. However, whilst the “issue in the case was very unusual”, it was “ultimately one which required the court to perform its familiar function of interpreting a statute, not invalidating a statute.”

And the House of Lords (now the Supreme Court; itself a confusing change – see my tweet from yesterday) it was only exercising powers of review which Parliament had granted it in the first place. Other acts, such as the European Communities Act 1972 and the Human Rights Act 1998 provide similar powers of “constitutional review”. But those powers were granted by Parliament, so can hardly be said to run contrary to its intentions.

What about the famous but also slippery rule of law? Is it possible that if Parliament went too far, the courts could use the overriding principle of the rule of law to overrule their former masters? Not yet, says Neuberger:

before they could accept such an argument, the courts would have to overcome the acceptance by Lord Hoffmann in the House of Lords in 2000 of the proposition that Parliament can ‘if it chooses, legislate contrary to fundamental principles of human rights.46’ It can, if it chooses, and clearly and expressly states that it is so doing, enact legislation which is contrary to the rule of law.

Neuberger goes on to discuss the human rights act in some detail, beginning at paragraph 52, including an interesting discussion of the origins of the European Convention on Human Rights, summarising Dr Ed Bates’ historical analysis (see his guest post on this blog). These are powerful legal instruments, says Neuberger, but

neither the Convention nor the Human Rights Act goes nowhere near to imposing a limit on Parliamentary legal sovereignty.

And, for those who say that this government is legally and fundamentally obliged to implement decisions of the European Court of Human Rights in Strasbourg, such as that over prisoner votes, this simply isn’t the case, on a fundamental level at least:

It is true that membership of the Convention imposes obligations on the state to ensure that judgments of the Strasbourg court are implemented, but those obligations are in international law, not domestic law. And, ultimately, the implementation of a Strasbourg, or indeed a domestic court judgment is a matter for Parliament. If it chose not to implement a Strasbourg judgment, it might place the United Kingdom in breach of its treaty obligations, but as a matter of domestic law there would be nothing objectionable in such a course. It would be a political decision, with which the courts could not interfere.

And as most law students will know, the Human Rights Act only permits courts to interpret (albeit, sometimes very widely) legislation, not strike it down. That is not to say, however, that the act hasn’t empowered judges in reality and perception. It has done so in three ways:

First, as just discussed, it has enabled judges to do what they previously could not – to review legislation in order to assess whether it infringes fundamental rights. Secondly, it has required the judges to develop the common law so as to ensure that our courts dispense justice which accords with human rights… Thirdly, the courts, which had already expanded their judicial review role enormously over the past forty years, have been required to examine the decisions and actions of public authorities more critically than before; such an examination is however an examination of executive act and not Parliamentary will.

There is, Neuberger concludes, “nothing wrong or surprising about this.” For

If the laws which Parliament has enacted are transgressed, it is for the courts to uphold those laws, not least when it is the executive itself which has transgressed them.

But the fact remains that when Strasbourg speaks, it is for Parliament to consider what needs to be done:

Because implementation lies in the hands of Parliament, the debate about fundamental rights, a debate on which vehement and legitimate disagreement can ensue, is conducted in Parliament. It’s there that the ultimate decision lies – not with the judges.

It is ironic, he says, that in the United States, which is “the beacon of democracy”, the people are “is prepared to leave entire fundamental political issues such as gun control, abortion, and capital punishment, to unelected judges rather than to democratically elected representatives.” It is inevitable, therefore, that “their judiciary has become politicised“.

Neuberger takes a traditional English constitutional line on this issue. His basic argument is that whilst judges may sometimes appear (and perhaps even believe) that they have power over Parliament, ultimately this is only insofar as it has been granted by Parliament. So, logically, Parliament can choose to take that power away. And this is a good thing because it is a basic principle of democracy that the directly elected representatives of the electorate hold the ultimate power.

This view does leave open the very difficult question of what would happen if Parliament did something which clearly ran foul of the rule of law and fundamental rights. Other senior judges have argued that this would lead to a genuine clash, and courts may be forced to lose their traditional deference. This would only happen in the most extreme scenario. But in time of terrorism and war, it is by no means unimaginable.

And whilst it may technically be within Parliament’s powers to ignore its international legal obligations, surely it should not do so as a matter of course. Having the power to do something does not mean it is right to do it. The benefits of such treaties in international cooperation would disappear along with the costs, which may – depending on your view of the benefits of international cooperation – be a bad thing for UK citizens.

So Humpty Dumpty may be right that the important question is who is the master, but this does not make the answer any easier.

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