Where will the judges sit?

When, some years ago, the Bar’s dining room at the House of Lords was closed and barristers appearing before the Law Lords were given permission to use the Peers’ dining room, younger barristers became quite badly disoriented by seeing elder statesmen who they were confident had been dead for many years lunching at the next table. What they didn’t always appreciate was that it was thanks to a similar cryogenic process that the Law Lords themselves were hearing appeals – as they still are. When the Victorians set about rearranging the legal furniture, they legislated to abolish the appellate jurisdiction of the Upper House (a particular anomaly at that time, since it was only by convention that non-lawyers in the House abstained from sitting on appeals). They created a Supreme Court with a Court of Appeal at its apex for England and Wales, leaving Scotland and Ireland with their own separate systems. Limiting the majority of appeals to a one-stop process seemed a logical way of professionalising the judiciary and saving costs. The Supreme Court of Judicature Act, abolishing the Lords’ appellate jurisdiction, was accordingly passed in 1873; but before it came into force, in 1876, a further Act was pushed through, against the advice of both the Liberal reformer Lord Selborne and the Conservative reformer Lord Cairns, restoring the Lords’ nationwide appellate jurisdiction (apart from criminal appeals from Scotland) and creating the office of Lord of Appeal in Ordinary to ensure that only real judges would sit in future. That it was, in Robert Stevens’s words in the Dickson and Carmichael volume, ‘the work of a group of right-wing Tory MPs who cared nothing for law, the courts or litigants, but were anxious to prop up the hereditary principle by creating a group of judges who might balance the bishops’ is of less importance now than the fact that the Appellate Committees of the House of Lords have established themselves as one of the world’s major constitutional courts.

Two paradoxes leap out from that last sentence. How can a series of randomly composed committees be a court? And what is a constitutional court in a country which appears not to have a constitution? To take the second one first, there is less difference than one might think between a written and an unwritten constitution. The prescriptive document dates; it turns out to be far from comprehensive; its meanings and values become fogged and contested; and it becomes – you need look no further than the United States – less a guide to action than a site of disputation. Adjudication in such a system is not radically different from the process of interpreting statutes, reading them down or up to conform so far as possible to received standards of legality, and trying to make the common law respond to change without diluting principle. There’s at least a hint of this riddle in the US Supreme Court’s repeated acquiescence in the exercise of a Presidential dispensing power over legislation, which England fought a civil war to take away from its monarchs and which is not readily visible in the text of the US Constitution. The modern Law Lords, seeking to respect Parliament’s legislation but at the same time to stand up to abuses of executive power, may be thought to have done at least as much as their US counterparts to sustain constitutional principle. Written or unwritten, a constitution is only as valuable as the principles it diffuses, a process in which the courts can play an obscurantist or a pioneering role; and it is here, not in its being written or unwritten, that a constitution either functions or malfunctions.

Curiously, it is not the present Government’s sweeping programme of constitutional reform but the Pinochet case that has put the first paradox on the front pages. One Law Lord’s failure to declare a disqualifying interest led not – as at one time it might have done – to a closing of the judicial ranks but to the admission of error and the expunging and retaking of the decision. The first Judicial Committee of the House, by three to two, overset the High Court’s decision in the General’s favour largely on the basis of arguments which had not been developed below. The final Judicial Committee, now composed of seven Law Lords, reached by six to one a conclusion based on a yet further set of arguments. The outcome went from no extradition to wholesale extradition to extradition on three late charges only. It’s hard to find a sharper illustration of the elusiveness of judgment, and even harder, if you read all the speeches (Law Lords’ judgments rank as speeches in a debate), to say which sets out the most cogent view of the law. The one thing that can now be said is that the issue has been decided. But notwithstanding some agitated press comment, nothing in the episode logically calls in question the practice of sitting in committees of five (or occasionally seven) instead of as a fixed bench of nine or eleven: indeed, were the latter normal there would have been no way of assembling a fresh court. The first paradox, in other words, may be illusory. A single court of constant composition may well confer finality, and finality, as Lord Atkin said, is a good thing; but justice, as he also said, is a better. This is not an argument for further Pinochet-style reruns; merely a reminder that courts, even supreme courts, can guarantee to be fair but not to be infallible, whatever numbers they sit in.

The press may nevertheless have been right to raise this question, because it is likely to be one of the few that helps to shape what is to come. With the impending reconstruction of the House of Lords, the future of the Law Lords has to be addressed. Barely anybody now argues for the removal of a final tier of appeal: the backbenchers of 1876 have done better than they knew in that regard. But the Law Lords’ future cannot be treated as an isolated question of whether they should remain voting members of the Upper House (though this is an important constitutional issue). It has now to be located in a complicated set of arrangements for the resolution of devolution issues between England and Wales, Scotland and (one day) Northern Ireland. The reason is that devolution issues, concerning the allocation of state power within the United Kingdom, will in general be resolved (if they cannot be resolved administratively) by appeal to the Judicial Committee of the Privy Council – a body which in its day-to-day composition is largely indistinguishable from the Judicial Committees of the House of Lords. Robert Hazell’s Constitutional Futures, less an adventure in futurology than an intelligent look at what’s on the table, points out that this ‘double apex’ is less than satisfactory. Bringing a new bifurcation into a previously unitary domestic system of adjudication carries a risk of conflicting decisions, each of conclusive authority, on the same point – for there are issues which can arise either internally or intergovernmentally and so find their way both to the House of Lords and to the Privy Council.

The possibility of an entirely new Supreme Court for the United Kingdom is therefore on the agenda. Its size and composition, and its relationship to the legislature, are wide open. Whatever the Wakeham Commission on the future of the Lords advises, the choice will remain of either maintaining or severing a structure which at its pinnacle fuses the judicial with the legislative function. The easy answer is to be serious about the separation of powers, but the separation of powers is and always has been a myth – that is, a useful but untrue account of things. The Georgian England in which Montesquieu claimed, for his own good reasons, to have observed and admired it was a society in which the judges routinely advised on the content of Bills and sold freehold court offices, and the Lord Chancellor, as he still does, played a major role in all three limbs of the state. The Federalist papers, for reasons similar to Montesquieu’s, adopted the myth. It doesn’t follow that there is a fault in reality. The argument for keeping the highest judges out of the legislative process has been, at least for the last century and a quarter, that the technical functions of making and interpreting law are qualitatively different and cannot with integrity be performed by the same people. But the ghost of the Jacobean judge who said to counsel, ‘Do not gloss the statute: we know it better than you, for we made it ourselves,’ has been walking the corridors again since the Law Lords in 1992 allowed Hansard to be used to illuminate impenetrable passages in Acts of Parliament. There are now several sections of Acts – the new Access to Justice Act, for example – introduced by Law Lords by way of amendment. It might be thought by purists wholly undesirable, but by pragmatists wholly beneficial, that the mover of such a provision should be among the judges who interpret and apply it.

If, as seems probable, a wholly elected upper house is rejected as representing a potential challenge to the lower house’s legitimacy, and some system of social and professional representation by selection is adopted instead, it doesn’t follow that the law has to be represented by sitting judges. Senior judges are now regularly consulted by government, as they should be, about proposed law reform measures. Is there any reason why they – or for that matter more junior judges closer to the forensic coalface – should not also sit on the select and standing committees of a reformed upper house, contributing their views in the open, without becoming voting members of the chamber? As for the bishops, Lord Wakeham may tell us whether what they need is balancing in the upper chamber by judges (a bizarre piece of Victorian arithmetic), dilution by prelates of other faiths and adherents of no faith (requiring some millenarian arithmetic), or disestablishment. For the judiciary, it is not the separation of powers but judicial independence which is critical. The necessary discussion, it seems to me, is about preserving the latter: it may be, but there is no reason to assume it to be, coextensive with the former.

Even five years ago a book on our constitutional future would have been an unfocused crystal-ball job or a set of optimistic exhortations, and volumes on the two Parliamentary chambers have been either self-congratulatory or merely descriptive accounts of unsatisfactory procedures and bad habits. In that short time the landscape has been changed not only by a general election but by Nolan. Some years ago I sat in embarrassment at an international conference on constitutional law and listened to an Italian professor saying: ‘The British Parliament makes rules to suit itself and tolerates politicians who break them. In Italy it would no doubt take years, but a politician who took money for performing political services would go to prison.’ The courts, it has to be said, had not helped. In 1935 a court presided over by the Chief Justice, Lord Hewart, threw out A.P. Herbert’s challenge to the legality of the House of Commons bars selling drink outside the hours which Parliament had laid down for everyone else. Geoffrey Lock acerbically analyses the decision (and its author) in his chapter on the law governing Parliament in the Oliver and Drewry volume. Part of the reason for the decision, and not a wholly discreditable one, is that in the absence of a constitutional arbiter the courts and Parliament have since the last century had to maintain a careful stand-off. But one result has been a lack of legality within Parliament itself. This would not matter if, by the regulation of its own privileges and procedures, Parliament had set and enforced standards at least as high as its laws and the common law set for those outside. But it took the exposure and near-collapse of a system which had become self-indulgent and lax to shake members into remedial action.

The eventual appointment in the autumn of 1994 of a special committee chaired by, yes, a Law Lord, Lord Nolan, was a critical event – not so much in charting a new future as in getting rid of the worst aspects of an indefensible past. Cash for questions was nasty, certainly, but also absurd, because any citizen with a sensible question for a minister could always get an honest MP to ask it. The bigger problem, which neither Lord Nolan nor his successor Lord Neill has yet solved, is the payrolling of MPs by outside interests. In local government it has for a century or more been accepted that a member with a personal or pecuniary interest leaves the debate and does not vote. In Parliament it was until recently acceptable for a paid spokesman not only to contribute to debate and to vote but to wreck private members’ measures inimical to the paymaster by calling ‘Object’ or by filibustering on the previous measure on the order paper. Nolan has changed some but not all of this. The solo wrecking procedure remains. So does paid sponsorship of MPs. As Michael Rush recounts in his chapter on the law relating to members’ conduct in the Oliver and Drewry volume, Nolan’s first ground for at least temporary non-intervention was that these deals ‘had been made perfectly lawfully’ – the Italian professor’s precise point; his second, that so many members were in receipt of outside payments that excluding them would disrupt the business of the House; his third, that prohibition would reduce many members’ income; his fourth, that by striking also at trade union and Co-Operative Party funding of Labour candidates it would unbalance party funding. Neill is now looking at the last of these in the round. The remaining reasons, it might be said, stand up only if one leaves out the obvious answer: that if elected, candidates be paid a decent salary (the same as a High Court judge – why not?) and in return, as in any other employment, be expected to devote themselves to the job and not earn or take money on the side. The customary riposte that MPs need to remain in touch with the real world tends to come from those who prefer to continue to earn a second living at the Bar or in the City, neither of them a world particularly real except to its own inhabitants. Most MPs, I would guess, find that it is at their surgery and in their mailbag that the real world lurks. In the event, Parliament went further than Nolan had felt able to go and in 1995 banned all paid advocacy in the House, though not in lobbying so long as more than the sponsor’s own interests are on the agenda. The Register of Members’ Interests now records who is being paid by whom, and paid advice (which, as Rush points out, can be even more valuable than advocacy) continues to be permitted.

On this and other scores, others must say how much has been and how much remains to be accomplished. One of Lord Nolan’s problems, for example, was whether an MP who took a bribe had to be arraigned by Parliament rather than prosecuted in court. The legal miasma left by years of acquiescence was thought to have shrouded the question in doubt. (In fact, as Patricia Leopold points out in her excellent chapter on the application of the ordinary law to MPs and to Parliamentary proceedings, a High Court judge decided in 1992 that membership of the House did not shield a defendant accused of corruption from the ordinary process of law.) What was not in doubt was that the outsider who offered the bribe could be charged and tried. Somehow, in the Home Office’s response to Nolan, this was translated into a generalised doubt about liability for bribing MPs; and in place of Nolan’s proposal that the question should be referred to the Law Commission, a discussion paper was issued which proposed a choice of measures including leaving it to Parliament to decide what to do about an MP accused of taking bribes. This, to borrow the title of Lord Hailsham’s autobiography, seems unnervingly like the door wherein we went.

The Dickson and Carmichael volume on the House of Lords is able to bridge the judicial-legislative gap because its subject is at present a body which discharges both functions. Its distinguished contributors (four of them shared with Oliver and Drewry) survey this leviathan of apparently spontaneous origin with a mixture of wonderment at how it functions at all and worry about whether it can go on as it has done. This is the British constitution, of which Mr Podsnap was so incoherently proud, at its ineffable best. The indignation of Lord Campbell of Alloway’s recent protest at Lord Lester’s keeping the House awake by banging on about human rights after dinner rings down its corridors. Having sat in full-bottomed wig and knee breeches at the State Opening and watched a life peer identify his hereditary neighbour by whipping out the latter’s name-card from under his bottom, I have just an inkling of the feel of the place. Whatever replaces it will be no match for what will have gone.

The interesting thing about the tone of many of the essays on the Lords in their judicial role (a role carried out for the most part in lounge suits in committee rooms) is a recurrent concern – not pride, concern – that the Law Lords are becoming a constitutional court. Simon Lee foresees a judicial committee ready to ‘by-pass, override or supplement Parliament’. ‘By-pass’, yes – at least when Parliament is incapable of action, as it once was for decades over slavery and is today over the termination of life support and a good many other questions. Lee may not like their answers, but that’s another matter. ‘Supplement’, yes – that is one of the jobs of the common law and always has been. But ‘override’ (and slipped so neatly in between the other two)? I think not. In any case, as more than one of these essays point out, the role of constitutional court is being thrust on the Law Lords by our membership of the European Union and by the Human Rights Act, as the inherited dualism of a system which left treaties to the executive is eroded by a Continental monism which makes the courts the custodians of treaty obligations. But the consequences, including as they have done the striking down of a statute which disadvantaged part-time and therefore overwhelmingly female workers as contrary to the equal pay provisions of the Treaty of Rome, led the Times and Patricia Maxwell, who quotes its leader on the topic, to fear that ‘Britain may now have a constitutional court.’ If by this is meant a court with the power to strike down legislation, it is Parliament which by conscious choice in 1972 created it in legislating for the supremacy of EU law within our own system. But a constitutional court is both more and less than this: in a common law country like the UK, it signifies a court prepared to develop and apply principles of fundamental justice throughout the state, stopping only where Parliament has plainly said otherwise. The Human Rights Act, which comes into force next autumn, by placing just such responsibilities on the courts will complete the creation of just such a constitutional jurisdiction with the Law Lords at its apex. Louis Blom-Cooper and Gavin Drewry, returning in a short chapter in the Carmichael and Dickson volume to the theme of their pathbreaking book Final Appeal, say:

If we were to engage in a second edition of Final Appeal, we would not, as we did in 1966, start from a position of agnosticism but would tend towards endorsement of the enduring value of the House of Lords in its judicial capacity ... There will indubitably be an enduring place for the final court of appeal, whether in the Palace of Westminster or elsewhere.

A pity the fine Public Record Office building in Chancery Lane has now been sold.

Whatever now happens, the state at the pinnacle of which the Law Lords sit will not be the same again. Oliver and Drewry remark:

it is probably more accurate in the light of recent and continuing changes in sub-national government to think of the United Kingdom as a union rather than as a unitary state ... While the Scotland Act cannot prevent the Westminster Parliament from legislating for Scotland in the future in areas devolved to the Scottish Parliament, the political reality is likely to be that such power will not be exercised.

If this is right, as I think it is, we are incipiently now a federal state in the sense that the powers distributed to Scotland, at least, cannot in practice be unilaterally retrieved. The endeavour to anticipate, think through and plan for such a historic shift has been led by the Constitution Unit set up by Robert Hazell and now housed in University College London. Their volume offers the sort of combination of meticulous research and methodical thinking which ought to be the stuff of government (where Hazell spent most of his pre-academic career) – and which for all we know a proper freedom of information regime might one day reveal is the stuff of government. Meanwhile, it is only from a book like this that one can get an informed sense of what is and could be happening to the shape and structure of the United Kingdom, sharpened by comparative accounts of the recent experience of European and Commonwealth countries.

But however much changes, much of the old organic constitution is going to remain. Although modern drafts exist, there is no proposal on the table to adopt a written constitution for the United Kingdom, and the task of composing one consensually becomes commensurately harder as devolution progresses. Christopher Vincenzi’s book joins the long line of hard looks at what can be regarded as either the most or the least significant part of the inherited constitution: the prerogative powers of the Crown. Seen as a residue occupying the few remaining spaces between the huge and still growing body of statute law, the steady flow of judge-made law and the vast body of delegated legislation, the Royal Prerogative doesn’t appear to amount to much. When ministers tried to establish a legal no-go area by setting up the first Criminal Injuries Compensation Scheme under prerogative powers, the courts were swift to bring the scheme within the law and to hold the Home Secretary to the rules he himself had published; and this was in 1967, almost two decades before Vincenzi credits the courts with taking such a step. But seen as Vincenzi sees it, the Royal Prerogative is the sea which surrounds the continents and islands of law and is capable at times of breaching their defences. In particular, he argues, there are major regions where the use of the prerogative power goes both unchallenged and unregulated.

There is substance in this. The control of immigration, historically a matter solely for the discretion of ministers of the Crown, has since the early years of this century been made subject to statutory provisions which determine what ministers may do. But, Vincenzi argues, Home Secretaries have continuously exercised an occasional dispensing power in the form of the grant of exceptional leave to remain – a necessary power for hard cases, but one which (he suggests) has no foundation in law. A similar form of pragmatism, he contends, underlies the granting of extra-legal tax amnesties and the pardoning of prisoners. All have to be allocated to the Prerogative if they are not to be regarded as lawless acts. In this catholic sense the Crown’s prerogative, exercised as it has been for almost three centuries by the Crown’s ministers, adds up to everything that government does without express legal authority, which is a lot. It is Vincenzi’s thesis that being theoretically answerable through ministers to Parliament for the exercise of a swathe of powers inherited from an absolute monarch is no substitute for constitutional legality in a democracy.

He may be right, but where I think he goes wrong is in supposing that the common law, which governs the exercise of ministerial powers, is philosophically incoherent and tends merely to endorse the status quo. This, I know, is how it often seems (sometimes with justice) to academics, but it is certainly not how ministers now regard it – rather the reverse; and I don’t accept Vincenzi’s charge that modern public law is simply judicial ad-hoccery. While the courts do try to enable government to work, they have developed and are still developing doctrines which, for example, forbid the use of discretion or policy to make arbitrary or unjust choices, and which hold the state to some of the promises it makes to individuals. While Vincenzi is entitled to regard the present situation as the product of a series of historical accidents, a system which is all rule and no discretion is likely to produce more, not less, injustice. The ambivalence is apparent in his account of the Court of Appeal’s ruling that even though a statute forbade the Home Secretary to give his reasons for refusing the Fayed brothers citizenship, fairness required him to give them some prior indication of his objections and a chance to answer them. Pointing out that, as aliens, the Fayeds had no right to British nationality, Vincenzi calls the decision ‘remarkable’. If he is not applauding the opening of a judicial window on an otherwise stygian process, is it simply because he has made it his thesis that the courts and the executive are in it together?

Behind the broad sweep of governmental powers stands the Royal Prerogative in its grand sense: the power to do what no individual can do – declare war, make peace, create peers, sign treaties, appoint judges and ministers (no, ministers are not elected either) and summon and prorogue Parliament. These functions may very well be in political and legal reality beyond the control of the courts. Most of them are also – and here Vincenzi has a real point – beyond the control of Parliament. But no principle, and no constitution that I know of, gives the people or their deputies the right to vote on everything that happens or is to happen in the state. The real problems, and it is the value of Vincenzi’s book that he develops this, are problems of knowledge, accountability and legality within an ineluctably layered and partitioned polity. But while one acknowledges the scholarship and the honesty of the argument, it cannot support his concluding view that ‘the survival of the British constitution for so long has been a triumph of pragmatism over principle.’ What it has represented, or so it will seem to anyone familiar with Quentin Skinner’s work on the political legacies of the Civil War, is a symbiosis of the two. While Mr Podsnap’s remark about the Constitutions of Other Countries (‘they do, Sir, they do – I am sorry to be obliged to say it – as they do’) was and is embarrassingly true of our own, such principles as have become part of what we do are real. The problem, it may be, is that there are still not enough of them and that some of those that there are are wrong.