All Hale Parliament: Responding to the Reith Lectures

16 October 2019 by Alice Kuzmenko

Lady Hale has thrown her wig into the debate on whether the law, represented by the courts, is gaining power while politics in Parliament is losing it. She is not the first to critique Lord Sumption’s Reith Lectures, as they were covered at ALBA’s Annual Conference too (see Law Pod UK episodes 88, 89, and 91).

Background

The former UK Supreme Court Justice Jonathan Sumption gave this year’s Reith Lectures, which can be found here. Alternatively, you can read Trials of the State: Law and the Decline of Politics (Profile Books 2019), which is based on those lectures.

Lord Sumption gave five lectures on various topics relating to the law and to politics. Lady Hale primarily focused on the rebuttal of his argument that courts are growing in power and are going too far in filling legislative gaps, while politics (in the form of Parliament) is losing power. He argued that the courts are effectively answering political questions, such as in Nicklinson and Northern Ireland Human Rights Commission, that ought to be left to politicians. Lord Sumption is particularly concerned by the development of human rights via a judicial process rather than a political one.

Lady Hale gave her response on 8 October 2019 at the Dame Frances Patterson Memorial Lecture 2019, honouring a “distinguished and effective public lawyer”. She prefaced her speech by expressing that her response does not cover the recent litigation on prorogation, so this blog post too shall not remark upon that litigation.

Lady Hale’s Response

Lord Sumption referred to the Charlie Gard and Alfie Evans cases to demonstrate the expanding empire of the law.  Lady Hale was at odds with this view. She argued that those cases are the perfect example of the court acting within its remit, applying the well-known section 1 of the Children Act 1989 rule that where decisions are made as to the care or upbringing of children, their welfare is the paramount consideration. To her, whether Charlie or Alfie should have been taken abroad for experimental treatment was exactly the type of question that the courts are supposed to answer.

Lady Hale also agreed on the growth of the principle of legality, as seen in Ridge v Baldwin, Padfield v Ministry of Agriculture, and Anisminic v Foreign Compensation Commission, but qualified that by noting that they were effectively negative developments (restraining unlawful actions by the executive) rather than positive developments of human rights. In so doing, the courts act as an important check and balance on the executive.

Lord Sumption is sceptical of the development of the European Convention rights, especially Article 8, because they did not develop by way of the political processes. Lady Hale reminded us that the “living instrument” doctrine as a form of constitutional interpretation has been in use for nearly a century. She highlighted the 1929 case of Edwards v Attorney General of Canada, suggesting that Parliament should not be so surprised by the existence of the doctrine.

Moreover, Lady Hale points out that the Human Rights Act 1998 itself expands the role of the courts. Parliament tasked the courts to incorporate the ECHR into UK law. Of note are sections 2 (must take into account certain European materials where ECHR rights arise), 3 (interpret UK law compatibly with ECHR rights where possible), and 4 (declarations of incompatibility). In this respect, the courts have been required by Parliament to become more involved in human rights decisions and their developments. They are therefore merely doing as is expected of them, not building an “empire”.

She also drew attention to the fact that Parliament certainly retains the power to overturn the courts too, such as in Barker and Rothwell, or can simply do nothing at all.

Comment

Lady Hale raises a valid critique, and there are further points which can be made in support of her argument.

In addition to the UK being aware of the living instrument doctrine generally, Parliament was well aware of the living nature of the ECHR itself by the time it passed the HRA. It was 20 years earlier in Tyrer v United Kingdom that the European Court of Human Rights said the following:

The Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions. In the case now before it the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field. [31]

As to Parliament’s plight against the living instrument aspect of the ECHR today, there is scope for Parliament to express any discontent with new developments. The UK can, amongst other things, refuse to sign or ratify new Protocols – as happened with Protocol 12 on the prohibition of general discrimination.  As to obligations that the UK has already taken on, the government can under Article 15 derogate from fulfilling most of their ECHR obligations in exceptional circumstances.

There is some scope to argue that the ECHR, as brought to the UK through the HRA, requires the courts to deal with politicised material. This includes decisions as to what is necessary in a democratic society for any of the important claims under the Convention, but particularly – for the purposes of this debate – a claim under Article 8. But it is Parliament who has tasked the courts to make these judgments. If the courts cannot make these sorts of decisions in the cases before them, then who will take on this burden?

It is interesting to note also at Annex A of the latest available report on Responding to Human Rights Judgments that in the 17 years since the Human Rights Act came into force, 39 declarations of incompatibility were made – just over two a year, on average. Of the 27 not overturned or awaiting appeal, 15 were addressed by later legislation, remedial orders or administrative measures, 4 were proposed to be addressed, 3 awaited consideration, and 5 related to provisions that were changed by primary legislation by the time of the declaration. This highlights that the court seeks to merely point out legislative flaws, and that around two-thirds of the time, the executive has agreed that those flaws exist. Where it has not, the courts’ decision was negated. The courts have not stolen power from politicians – they highlight legislative problems and allow Parliament to decide on the policies.

As it stands, Parliament remains supreme within the legal hierarchy of the UK. Any perceived usurpation of its power by the courts can be corrected by enacting legislation. Unless and until Parliament decides to re-balance the constitutional relationship to be akin to that of the United States of America, whose Supreme Court can strike down legislation, Parliament cannot be considered as losing its political power to the courts. It is as much in their hands as they would like it to be.