'Justice and Public Will' - Lord Justice Laws: CULS Lecture

JUSTICE AND THE PUBLIC WILL
Sir John Laws

1. The advent of HR law has produced a number of controversies. Here are seven of them:
• Does the Strasbourg court have too loud a voice in our domestic affairs?
• Does the Strasbourg court lean too far in favour of rights claims, at the expense of the public interest?
• Do our own courts and tribunals lean too far in favour of rights claims, at the expense of the public interest?
• More specifically, has the law taken a wrong turning over issues such as votes for prisoners, whole life prison sentences, and the deportation of foreign criminals?
• Should we pull out of the ECHR?
• If we do, will we also have to pull out of the EU?
• Should we enact a British Bill of Rights?
2. Some of these – in particular the last three – are evidently more political than others. Some are more general, some more specific. They have not only been the focus of sometimes febrile debate among the politicians; the less nakedly political topics have variously been the subject of recent off-the-Bench pronouncements by members of the judiciary – Lord Sumption, Lord Judge, and just the other day Lord Neuberger, giving the Freshfields annual law lecture. I offered up a contribution myself last November in the third Hamlyn Lecture.
3. I am not going to discuss these individual issues. My purpose in listing them is to suggest that the way they jostle with each other in public tends to obscure rather than illuminate a deeper, single theme, about which I will say something this evening. It may be put as a single question, which is not purely concerned with human rights, but is fundamental to our constitution – perhaps the very nature of our society: what kind of democracy do we want to have? Put a little more tightly, do we want a democracy where majoritarian or popular rule is very largely unconstrained? Or one in which government’s freedom of action is confined, perhaps closely confined, by wide-ranging constitutional principles administered by the judges? What limits should be set to the power of the elected arms of government?
4. The question is perhaps more often asked in these terms: what is the right balance of power between the courts and the government or Parliament? It is hardly original – much has been written, and is still being written, about the relation between law and politics. But the advent of human rights law in the UK has made the issue an acute one; and also something of a double whammy. First, the ECHR (especially the political rights: Arts. 8 – 12) is drafted in very general, strategic terms: the right to private and family life, religious observation, free expression, & so on. So claims for the vindication of such rights are bound, at least in many cases, to involve questions which have traditionally been the province of government policy. For that reason the force of the ECHR – whether exerted through Strasbourg or our own courts – has effected a shift in the balance of power from the legislature and the executive to the judiciary. The second arm of the double whammy is that the impact of an international court – the ECtHR – making decisions about those very general rights issues has in the minds of many heightened the sense that our own democratic institutions of government are increasingly impotent – precisely because the Strasbourg court is an international and not a domestic court.
5. Moreover the fact that the balance of power between the courts and the government is a politically sensitive issue makes it more difficult to see it in dispassionate terms, as a question about what sort of constitution we want to have: but it is important, I think, to look at it in that way.
6. Though as I have said a lot has been written about the relation between law and politics, there is not much deep discussion in contemporary political debate about the respective merits in principle of elected governmental power and judicial power; or what such a question actually means. What is good about one, and what is good about the other? The politicians are sometimes inclined to look askance at the unelected judges (in extreme cases, “unelected” is a term of abuse). On the other hand the judges are sometimes defended as champions of human rights, almost as if they had a political agenda of their own.
7. The first thing to say about this kind of constitutional debate is that it will surely pay attention to history, culture and tradition as well as law. In his recent lecture Lord Neuberger (if he is accurately reported in The Times for last Friday, 14 February) said that “[t]he idea of courts overruling decisions of the UK parliament, as is substantially the effect of what the Strasbourg and the Luxembourg courts can do, is little short of offensive to our notions of constitutional propriety”. But it is not so everywhere. The balance of power in the State has to take account of the history and the constitutional traditions of the State in question. Lord Neuberger – I haven’t yet got hold of the full text of his lecture – appears to have said quite a good deal about the comparative history of the UK and the States of continental Europe; and a very distinguished EU lawyer, with whom I was discussing these issues informally a couple of weeks ago, was at pains to insist that the existence and powers of a constitutional court in the European States meant that the citizens of those countries were on the whole accustomed to the decisions of their government and legislature being overturned by judicial decision – quite a different citizens’ mind set from the characteristic reactions of our citizens here.
8. Next, we need to have in mind that the balance of power between courts and government – the question, what limits should be set to the power of the elected arms of the State? – is not merely a wrangle about the intrusions of continental courts into our domestic affairs. I am interested in what I think are more fundamental questions. What are the merits of democratic power? What are the merits of judicial power? We have to consider, as rigorously as we can, the nature of these powers. Let me offer some important differences between the two.
9. First, an important if obvious difference is that courts are reactive but governments are proactive. Governments initiate policy; courts respond to disputes brought before them. The ramifications of what either courts or government can actually do in practice – certainly the limits of what courts can do – are obvious. Courts cannot raise taxes or build hospitals or shrink or increase the armed forces. But there are broad and important areas in which courts and government both operate: fields which they share. Very generally, these are the areas where the citizen meets the State; where there is a claim by the citizen against the State, as in the judicial review jurisdiction, or a claim by the State against the citizen, as in the criminal jurisdiction.
10. The latter field – crime – is generally a less contentious area as regards the balance of power in the State than the judicial review jurisdiction, despite the frequency with which Parliament enacts criminal justice legislation. I suppose the reason is that judging individual criminal cases is of course left very much to the courts, whereas individual decision-making for example in the field of asylum starts with a determination by the Secretary of State. It is interesting, however, to note the decision of the CACD this week in McLaughlin, disagreeing with Strasbourg over an important issue concerning whole life sentences. The decision may presage – we shall have to see – a growing willingness of our courts to forge our own interpretations of the ECHR.
11. The instances where the balance of power between courts and government becomes acute are those in which the issue between State and individual transcends the particular case and raises a question of principle: a question about the relative merits of the individual’s interest, or claim of right, and the interests of the State. Consider these familiar controversies. How far should a foreign criminal who has fathered children be allowed to press his claims to family life – ECHR Article 8 – against the State’s determination to deport him? Should a travelling community be allowed, also on Article 8 grounds, to resist eviction from land which they occupy as trespassers? Which if any convicted and imprisoned criminals should be allowed the vote? In these and many other instances there are 2 questions of principle – what relative weight should be given to the claims of the individual and the public, or the State, respectively? Who should decide?
12. Before I offer you some thoughts on how this balance of power might best be struck – what kind of democracy do we want to have? – let me suggest a second difference between governmental and judicial power. I discussed this in the Sir David Williams Lecture in May 2012. Law and government have different, though complementary, moralities. The morality of law is essentially Kantian: it inheres in the notion that duties should be honoured and rights should be vindicated. The morality of government is essentially utilitarian: it puts the general welfare of the State and its citizens centre stage: “the greatest happiness of the greatest number”. From time to time, of course, each takes something from the other; government frequently legislates for rights and duties, and the law frequently speaks of the public interest. But the paradigm of law’s morality is the notion of justice, and the paradigm of government’s morality is the general welfare of the people as a whole. It is obvious that these two may very readily be in conflict. They are two different and contrasting ideals: both necessary, both perfectly honourable; and if we think that, if only we ponder long and hard enough, we shall find a means of reconciling them, we shall find ourselves disappointed. They cannot be reconciled: they have to be balanced.
13. The two differences between judicial and governmental power which I have outlined – courts reactive, governments proactive; courts Kantian, governments utilitarian – say something about the respective functions – attitudes, if you like – of these two powers in the State. But they tell you nothing, or very little, about their respective qualities: about the merits of their respective processes. More particularly they tell you nothing about what the nature of their decision-making owes to these very contrasting characteristics: democratic government has to be elected; judges, at least in our constitution, have a very high degree of security of tenure.
14. So much is elementary. But in order to understand the significance of this third difference between courts and government it is important to consider the rationale of this contrast between the ballot-box and the judges’ security of tenure. Let me start with democratic government. The principal merit of the ballot-box – of the very idea of representative democracy – surely lies in the people’s ability to change the government. It is an antidote to overweening, arbitrary rule: or at least, since a democratic government might itself be overweening and arbitrary, it is a means of removing a government which is inclined in that direction. But this comes with an obvious downside. The ballot-box has a side-effect which can be very damaging: populism. Democracy is fully capable of suppressing minorities and perpetrating injustices. It has a profound capacity to trample over justice in the name of a popular cause. A representative democracy is well able to deny justice and right to unpopular people. You have to remember, however uncomfortable it may be, that the price of the universal franchise is that the vote of the stupid, ignorant and malicious citizen is worth every bit as much as that of his thoughtful, educated and altruistic neighbour. Less dramatically, representative democracy is a form of government which is necessarily prone to short-termism: a looming election concentrates the political mind on the desirability of attractive policies before polling day.
15. Of course it is not all bleak; elected governments are sometimes wise and good. And though I have described populism as a sometimes damaging side-effect of representative democracy, there is an upside as well. Between elections the government will take account of the ebb and flow of public opinion; and though as I have said elected government is fully capable of suppressing minorities and perpetrating injustices, and may do exactly that as a supposed response to popular opinion, still the process does possess a self-correcting quality. It must be right for public opinion to have some force with government; and where public opinion divides into opposing camps, its ultimate influence may direct the government towards compromise, and that may be no bad thing. Over time public opinion itself will change and develop, and that too may be reflected in the policies of government or successive governments. So the formation of policy in a democracy has an organic quality. It is likely to be innovative and responsive to change. Contrast the sclerotic, rheumatoid quality of the laws of a dictatorship.
16. Now contrast the kind of decision-making that comes from the judges. There is, of course, no ballot-box. Indeed as I have said our constitution insists that the judges enjoy a remarkable degree of security of tenure. A High Court Judge and above can only be removed upon an address of both Houses of Parliament. The reason is just as obvious – and just as pressing – as the need for governments to face the electorate. The judges must be absolutely independent of government – indeed, of anyone. They must be impartial as between the parties to any dispute before them, irrespective, of course, of the power, wealth or status of one or the other. They cannot be populist. The influence on them of public opinion is, or ought to be, measured and remote, chosen not imposed. Their tenure of office fortifies these requirements. Against that background, their decisions are fashioned according to ascertainable law. They may be innovative, but the law – the common law – hones and is developed from established principles. It is a process of evolution and distillation. It is refined out of what has gone before. It is never constructed from untried materials.
17. Here too there upsides and downsides. The evolutionary nature of the common law, together with the independence and impartiality of the judges, delivers open and objective justice, and tends to foster what might be called a moderate liberality: a balanced, rather than an extreme, view of rights and interests. But the law is much less nimble than politics. It takes quite a lot of changing. And of course the judges are not representatives of the people nor accountable to them – in the sense in which politicians are.
18. Here then are important differences between courts and governments. The courts are reactive, government proactive. The courts’ morality is Kantian, the government’s utilitarian. The courts’ decision-making is objective and independent, the government’s highly responsive to public opinion. What are we to make of all these different qualities when it comes to the question: what kind of democracy do we want to have?
19. In every lis between the State and the individual there are some standards which the courts fulfil which, surely, no democrat could deny: reason and fairness. These are simply basics. As regards more specific values, the core rights guaranteed by the ECHR are a classic expression of civilised priorities and are generally enshrined in the common law. Thus we may all accept that private and family life, and freedom of religion and of expression ought to be respected or observed in public decision-making. The courts are properly the guardians of these principles as principles. And these are constitutional values which, as the common law develops to match the aspirations and priorities of the modern age, would be in the keeping of the courts even without the ECHR.
20. But these core rights or values are subject to exceptions and derogations: in ECHR terms, they are subject to the reservations in the second paragraph of each of Articles 8 – 12. The common law would make reservations as well. The vindication of individual claims is bound to conflict from time to time with the general public interest. No sensible legal arrangement could contemplate a system in which, in every case where such a conflict arises, the individual claim must prevail, or the public interest must prevail. There has to be a means of deciding, case by case, which comes first. Sometimes one will be more pressing, sometimes the other. The controversy as to the balance of power between courts and government very largely consists in this question: which arm of the State should have the greater voice in deciding which claim should prevail?
21. I think there are the beginnings of an answer – but perhaps no more than that – in the distinction between the core values themselves and their application. Their presence in our constitution ought to be beyond sensible dispute. The courts must therefore protect them; they must insist that whenever government proposes to interfere with them on public interest grounds, it provides a reasonable justification. But how far should the courts go further, and decide for themselves whether the interference is justified? Here, the cases speak with an uncertain voice. We – not just the judges: people of goodwill generally who take an interest in our constitutional affairs – have not yet decided categorically what the answer should be: we have not yet decided what kind of democracy we want to have – how tight the legal constraints should be upon the power of majoritarian or popular rule. The test of proportionality, which is a rich import from the continent, has the weakness that it tends to obscure the distinction between a merits appeal and a legal review. The same weakness is to be found in the well known idea that in a human rights case the intensity of review depends upon the gravity of the subject matter. How then should we approach the question, how to decide whether State interference with a core right is justified?
22. I have no instant panacea – this is a constitutional issue in which a settled answer will mature, rather than appear overnight. Indeed, the Human Rights Act has now been in force for nearly 13 and a half years, and no settled answer has appeared yet. I think careful attention needs to be paid to the fact that upon many of the most contentious issues – prisoners’ votes, the deportation of foreign criminals, whole life sentences – there may be diametrically opposite opinions held by perfectly reasonable people. Where that is the case we need to consider very carefully whether judges, rather than elected governments, should be making the choice. The courts can and should always demand of government a rational explanation for interference with right, and despite the possible conflation of law and fact which it entails, they will demand also that the response display a degree of proportionality between what is to be achieved and what will be lost. But we need to find a clearer means to articulate the difference between that process and the process of deciding the merits. Some of the case-law rather suggests that the judges are the sole arbiters – or something close – of the importance of the individual right at stake, allowing more scope for the judgment of government on the other side of the balance, the importance of the public interest at stake. I do not think that is necessarily right.
23. In short, then, I am inclined to think that the extent to which our democracy’s majoritarian, popular rule should be constrained by law needs a clearer recognition of the reach of government’s legitimate power to decide when the public interest should override a core constitutional right. I think an insufficient recognition of this process is largely behind those unsettling issues I mentioned at the start: do Strasbourg and our own courts lean too far in favour of rights claims, at the expense of the public interest? We need to find a constitutional balance that is and is seen to be a proper distribution of power in the interests of State and individual alike.
24. I would like to add a footnote; perhaps a warning about the power of government. Governments tend to be rather more concerned with ends than means. The Criminal Justice and Courts Bill is at present on its way through Parliament. You may have seen a piece about clause 50 by David Pannick in yesterday’s Times. Clause 50 adds a new provision to s.31 of the Senior Courts Act 1981. If it is passed s.31(2A) will provide:
“The High Court—
(a) must refuse to grant relief on an application for judicial review…
if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”
If this surprising provision is enacted, and the courts feel bound by the doctrine of Parliamentary sovereignty to apply it, it will mean that an individual may be very gravely affected by a public decision which has been unfairly and unlawfully arrived at, provided only that the court is persuaded that it is “highly likely that the outcome for the applicant would not have been substantially different” if the decision had been properly taken.
25. Our legislators will want to have in mind that by s.1 of the Constitutional Reform Act 2005 Parliament expressly recognised “the existing constitutional principle of the rule of law”.