Notes for the Ad Hoc Committee on a Bill of Rights
Rt Hon Sir Stephen Irwin, former Lord Justice of Appeal of England and Wales
Appearing 2pm 17 December 2020
1. I come before the committee not as a theoretical or academic lawyer, but as a judge with long experience of public law cases, judicial review and appeals from such cases. I will touch on three linked issues: "aspirational" rights, enforcement of such rights and their impact on our constitutional arrangements.
Background
2. I hope the Committee will not mind if I begin with some basic principles. I am sure the Committee will all be familiar with the principles, but I feel it really does help to focus clearly on them, before looking at the questions in hand.
3. In liberal democracies in general, and in the United Kingdom in particular, the legislature is sovereign. Legitimacy is a critical consideration. The legitimacy of the legislature is drawn from fair elections. The legitimacy of government ("the executive") is drawn from the command of a majority in the legislature. In Northern Ireland, legitimacy of the executive is framed by the provisions of the Belfast agreement, and the d'Hondt principles. The legitimacy of the third branch of the state, the judiciary, is derived from a proper and independent approach by the judiciary to the law, as promulgated or approved by the legislature.
4. The phrase "promulgated or approved" is important. Not all law is derived from an act of Parliament. Regulations derived from other sources but laid before Parliament, and approved by Parliament, are nevertheless part of the law, precisely because they are approved by the legislature. During the period when UK was a member of the European Union, European directives were part of our law, but only because an act of Parliament said so. Likewise, treaty obligations can become part of our law because they are adopted in statute.
5. When interpreting law, judges can use various tools. A key starting point is that in passing an Act or approving a statutory instrument, Parliament (or the Northern Ireland Executive) intended the provision to mean the natural meaning of the words, of course using context. 1
6. Another important tool is the presumption of legality: Parliament is presumed not to be overriding existing law or legal principles of common law. When a judge has identified the meaning borne by the words in context, then she or he will also look at what the presumed purpose of the law must be. Obviously, judges also look at previous decisions to help in this exercise, since previous courts will have done much of the work and it is necessary to achieve consistency. Although people speak of judges "making law", what that really means is that judges are interpreting law where there is a doubt about its meaning or application. In our system, judges are not free to impose their own views on social or political questions. Any judge who did so would be entering the political arena, and departing from the source of their legitimacy.
7. From around the 1970s in England and Northern Ireland, there has been a considerable growth in judicial review of administrative action. There are historical reasons for this which we cannot explore here. Judicial review can be simply described as the process by which courts examine whether public bodies have conformed to the law. One aspect of this is whether public bodies, particularly governmental bodies, have acted reasonably, proportionately and in a manner consistent with their own declared policy. It is a misunderstanding to think that judicial review involves the judge imposing his or her own views. But ministers often do not like being told they are wrong. Undoubtedly, the expansion of judicial review has raised the frequency with which judges are asked to interfere with executive action. More often, the questions considered bear on matters of social policy or even on politics. The most prominent recent example is probably the decision by the Supreme Court on the prorogation of Parliament. 2 This was widely characterised in the press and public commentary as the courts interfering in politics. That was a misunderstanding. All 11 justices of the Supreme Court were applying legal principles, to a legal question, albeit with an important effect on the political arena.
8. However, the Miller case and others, often involving immigration and asylum, give rise to real pressure on judges. There can be genuine public misunderstanding about what the judges are doing. There can also be deliberate misstatement about what the judges are doing, sometimes by those who should know better. This problem of perception, allied to the dislike on the part of those in power to being confined to the law, can lead to real tension. The very recent announcement by HMG of Inquiries into judicial review and into the workings of the Human Rights Act 1998 are undoubtedly linked to these tensions. In my view this is relevant to the question of introducing "aspirational rights".
9. It may help to give just a few illustrations of where the boundary lies. In the Saudi arms case 3, the court was asked to adjudicate on the legality of continued supply of arms to Saudi Arabia, the claimant stating that the arms were being used in atrocities. The government agreed that Parliament had by statute, at the behest of government, imported International Humanitarian Law (IHL) into domestic law. Detailed provisions of IHL had to be considered. The Court of Appeal concluded that the government had failed in one obligation under IHL. Exports were prohibited until they complied. This was not a "political" or "moral" decision. This was a decision based on a principle of law, although with important consequences for a political issue and for foreign relations.
10. In the Elan-Cane case 4, a non-gendered individual sought an order from the court compelling the Home Secretary to grant passport without the applicant giving an identification as either male or female. The case turned importantly on the claimant's rights under article 8 of the European Convention on Human Rights, and on how that article has been interpreted on this issue or analogous issues by European courts. European precedent recognises a "margin of appreciation" for the different member states of the Council of Europe. In particular, previous decisions have recognised that until there is a consensus on a social issue of this kind amongst the different member states, the margin of appreciation remains. On that basis, the Court of Appeal concluded there was not yet a sufficient consensus to compel the government to make the change sought. The court did recognise that such a consensus might build to the point where the change became necessary in law. Again, even in the context of interpretation of convention rights, a long way from the context which might have been envisaged by the drafters of the European Convention in the 1940s, the court was applying principles of law and applying precedent, not in any sense imposing the judgement of the individual judges on social or political questions.
11. My third illustration is drawn from the case concerning the altered ages at which women born in the 1950s would and will qualify for the state pension. 5 The case was complex, since the change came from Acts of Parliament, and the arguments involved consideration of European law and the law of discrimination. Aside from a difficult and technical argument on discrimination law, the claimant's case foundered on the simple fact that the changes were made by Parliament, which is sovereign. The court could not correct that nor offer any effective remedy. Parliament had declared the law. The court could do nothing other than apply it. Here to, the decision has been attacked in public on the grounds that it was "perverse" or "wrong", and characterised as a decision of judges out of touch with the facts or with social conditions. Yet the decision was a straightforward application of the fundamental constitutional and legal position.
Aspirational rights, the role of judges and legitimacy
12. The European Convention of Human Rights applies in Northern Ireland. There is no realistic prospect of that not being the case. Brexit makes no difference to this. None of the steps being taken by the current UK government are likely to lead to its abrogation. In order to leave the Convention, the UK would have to leave the Council of Europe. That would be a very unusual step. In any event, as the Committee will be fully aware, the Convention is built into the Belfast agreement.
13. While the ECHR applies, the convention rights there stated cover the gamut of individual rights. In terms of underpinning protection of the individual from intrusion by the state, or of establishing positive obligations on the part of the state where intrusion is necessary, in my view there is little to be gained by a local Bill of Rights.
14. What might be added? I have taken it that, in broad terms, we may be dealing with such things as the right to good health care, the right to a minimum standard of living, rights as to certain quality and provision of housing, perhaps rights focused on access to education. Of course in each of those areas there are and will continue to be statutes bearing on, for example, access to the National Health Service, a minimum wage, fair distribution of housing and the allocation of state provided education. Thus these areas are not free from law. But the law which exists is all given its legitimacy by the political will of the electorate through the franchise to the legislature. All that the judges have to do is to look at the particular meaning of those particular provisions.
15. Aspirational rights would change the nature of that exercise. By definition, the aspirational rights will be empty of meaning and effect unless they go beyond the specific laws passed through the legislature. Aspirational rights will necessarily draw the courts into the political arena. In effect, judges will be asked to say that the legislature has not gone far enough. The first question is, what is the foundation for the legitimacy of the courts in such an exercise? It cannot be that the judges are merely interpreting the meaning of legislation. Rather the opposite: judges will be asked to say that the legislation is inadequate, and properly understood, that means judges will be asked to say that a majority in the legislature (we presume properly elected) have failed. That is not merely to remove legitimacy from the judges, but to set them in opposition to the elected representatives in Parliament, or the Assembly.
16. One must also ask the question: are the judges equipped to make such broad policy decisions? What kind of case, what kind of evidence would be necessary? Who would generate this evidence? Judges have high intellectual calibre, but they are not trained as economists, statisticians, political scientists or even journalists. As I have already emphasised, our traditions and training are heavily focused on the application of evidence and the interpretation of language, avoiding the formulation and imposition of our own opinions. Currently when examining the consistency of governmental policy, judges do grapple with whether government has followed its own rules or taken into account its own evidence, or failed to ask the right question. But that is a very different question from formulating new social economic or political policies beyond those already declared by government or reduced into regulation or statute.
17. Moreover, making a reality of aspirational rights, as opposed to those which protect the individual from intrusion or mishandling, would be crucially dependent on the allocation of state resources. Can it be right for a judge to rule that the state must spend more on X, if that means less must be spent on Y? And to do so without that being directly linked to the choice of the electorate? And how is a judge faced with a claim focused on X, to reach a proper decision without knowing all the considerations (including budgetary considerations) that affect Y?
18. I suggest that the introduction of aspirational rights in a constitutional document will fundamentally alter the relationship between the courts and the other branches of the state. Judges are not well equipped for policy formation of a broad kind. I have already tried to describe how the historic expansion of judicial review has brought the different branches of the state into tension to some degree, even though the judges have been applying recognised principles of law and have in fact been careful to stand back from the political arena and policy formation. The historic tensions would be a tea party compared with the friction which would arise in our system if such changes were made.
19. That such tension can reach dangerous heights is obvious from contemporary Europe. The current position in Poland where the government of the Law and Justice Party has instituted a major conflict with the judiciary, dismissing many senior judges on grounds of non-compliance, engendering a major conflict with the central institutions of the European Union. They are now beginning on what has been termed the "Polonisation" of the media. This represents a frightening example. The politicisation of the court system in the USA, the country with the most mature written constitution in the world, and with a political system explicitly designed around it, represents another worrying example. The appointment of senior judges, if given activist constitutional authority of that kind, rapidly becomes a political matter. Once appointments are political, then the courts of superior appeal become politically weighted in truth, as opposed to myth, and as we have seen in America, become at least to some extent merely another political battleground. I suggest developments of these kinds here would be a real loss to the independent administration of justice
Enforceability
20. There is one more real problem which would arise from aspirational rights and that is the question of enforcement. At present, in a case where the courts rule that the government is in breach of the law, the remedy is normally simply to issue the relevant declaration. Government will abide by the ruling without further order. Other public bodies can be made the subject of an injunction. Thus enforcement is usually not a major problem.
21. However, in a situation where the courts ruled that the legislature had not gone far enough to satisfy an aspirational right given constitutional force, what would then be the remedy? Could the courts issue an order that a properly elected legislature should alter or extend legislation, perhaps to an extent in conflict with a manifesto or platform advanced in an election, and thus in conflict with the government's "mandate"?
Conclusion
22. it will be clear that I am for myself sceptical of the case for local Bill of Rights, at least in particular insofar as it might contain "aspirational rights". I fully understand the desire to improve social conditions and the desire to hold government to account. My own view is that those objectives have to be fulfilled through the political system, and through law made or approved by the legislature. There is more to be lost than possibly to be gained by politicising the courts.
23. I hope this paper is of interest and I would be very pleased to discuss it with the Committee.
Stephen Irwin
References
1 The fundamental approach to the interpretation of statutory language was laid down by Lord Reid in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613, as cited and approved by Lord Nicholls of Birkenhead in the famous passage from R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 396G–397A, where he said: "Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the 'intention of Parliament' is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the Minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of the majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and the words used may be impressively complete or woefully inadequate. Thus, when courts say that such and such a meaning 'cannot be what Parliament intended', they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning. As Lord Reid said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613 'we often say that we are looking for the intention of Parliament but that is not quite accurate. We are seeking the meaning of the words which Parliament used.'"
2 Miller, R (on the application of) v The Prime Minister [2019] UKSC 41 (24 September 2019)
3 R(Campaign Against the Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020
4 R (Elan-Cane) v SSHD [2020] EWCA Civ 363
5 R (Delve and Glynn) v SSWP [2019] EWHC 2252 (Admin); [2020] EWCA Civ 1199.
