Beware Kite-Flyers

Writers on the British constitution have always faced the problem that, contrary to what Mr Podsnap thought, it cannot simply be held up to the light and admired. The constitution is simultaneously a description of how, for the moment, we are governed and a prescriptive account of how we ought to be governed. In both respects (the former much more than the latter) it undergoes constant change; and there are concerns, highlighted by the radical changes currently being made to the legal aid system, that the process may be accelerating into a critical and damaging phase.

To its credit, Oxford has managed to get one of the most sophisticated British scholars of modern public law to produce a brief and readable account of the interpenetration of these two constitutional functions. Take Magna Carta, successively lauded as a charter of English liberties, then dismissed as a carve-up between a tyrannical monarch and his predatory barons, now coming up for its 800th anniversary and due for another reappraisal. Martin Loughlin arguably gets it in one: ‘By establishing the principle that acts of the king had an official character exercisable through certain forms, the charter constituted a landmark in the emergence of English governing arrangements.’ What followed was, as he says, messy. It took a long time for king and crown to become visibly distinct, ‘but it is from this concept of the crown – the king in his official capacity – that our understanding of government has evolved.’

In fact, it’s more than just our understanding of government: for more than three centuries it’s been the reality of the British state. While, as Loughlin points out, similar Continental charters in the 13th century made barons sovereign within their fiefs, the English charter gave the nobles a toehold in an already centralised state. It did so in part by forbidding taxation ‘except by the common counsel of our realm’: less an early outbreak of democracy than a recognition that the assent of the second estate, the nobility, and in due course the co-operation of the third estate, the burgesses and knights of the shire who represented the commons, was necessary if taxes were to be gathered for the crown. By the third decade of the 17th century it was estimated that the commons could have bought the lords twice over: the Civil War and Britain’s experiment with republicanism were on their way.

One of the principal contributors to this long and uneven process was, of all people, Henry VIII, who repeatedly resorted to Parliament for legislative authority for his divorces and his break with Rome. The establishment of a state church, with a hereditary monarch as its ex officio spiritual head, was a novelty which only an act of Parliament – an institution which Dicey was later, perhaps rashly, to boast could do anything except make a man a woman or a woman a man – could even purport to accomplish. To build on or to modify what Henry had done, his successors had again and again to resort to Parliament.

Loughlin comments that the 1689 settlement, establishing the Crown-in-Parliament as the supreme authority in the state, ‘fudged the finer points of constitutional principle’. It is true that the British Bill of Rights has a back-of-an-envelope look to it, but little more so than the constitutional shopping list contained in its US counterpart a century later. What is no less important is that in 1653 the Instrument of Government (Britain’s first and only written constitution, as Loughlin points out) had created what is today recognisable as an American-style presidency, installing as lord protector a head of state – Oliver Cromwell – who was to be not a figurehead but a chief executive whose emergency powers of taxation were to be subject to Parliament’s endorsement or override, and who was forbidden to suspend or dispense with its legislation: ‘The laws shall not be altered, suspended, abrogated or repealed, nor any new law made, nor any tax, charge or imposition laid upon the people, but by common consent in Parliament.’ The debt of the 1689 Bill of Rights to the Instrument of Government (which itself reflected some of the radical demands of the Civil War) is palpable:

That the pretended power of suspending of laws … without consent of Parlyament is illegall … That the pretended power of dispensing with laws or the execution of laws by regal authority … is illegall … That levying money for or to the use of the Crowne by [pretence] of prerogative without grant of Parlyament … is illegal.

Although it took a while to settle in (monarchs continued purporting to suspend legislation into the early 18th century), the essential purpose and effect of the Bill of Rights were to make the crown, which had long since been forced – in principle at least – to delegate its judicial authority to the judges and was shortly to begin devolving its administrative authority to parliamentary ministers, subordinate to Parliament. In return, the state undertook to conduct all three core functions in the monarch’s name.

Thus far we have the structure, but very little of the content, of the British constitution. Blackstone, in the late 18th century, took its content to be assured by three institutions: Parliament for the redress of grievances, jury trial for the protection of the innocent and habeas corpus for the restriction of state power, the latter two springing from article 39 of Magna Carta and assured by a judiciary whose independence had been guaranteed by the 1701 Act of Settlement. It was Dicey, a century after Blackstone, who sought to encapsulate the content of the constitution in what he called the rule of law: the idea that because the constitution itself derived from the rights of individuals, its fixed purpose was to guarantee those rights by the equal application of the same law to everyone from the prime minister to the postman.

Not only is Dicey’s paradigm a long way, as Loughlin points out, from the modern practice of prescribing rights by tabulation; it was erroneous from the start because, at a time when a sophisticated system of judicial review of official action existed in Britain, Dicey’s hostility to civil law systems in general and to France in particular led him to insist that in England ‘we have no droit administratif.’ Loughlin notes the curious (and under-studied) decline of judicial interventionism in the first part of the 20th century, as the negative freedoms which preoccupied Blackstone and Dicey were supplanted by the positive but paternalistic freedoms of the managerial and welfare state; and the hesitant but finally confident regrowth of judicial review in and after the 1960s into a system which ‘brought the administrative powers of government under the overarching supervision of the common law courts’. To do this the courts had to recognise, in defiance of Diceyan orthodoxy, ‘a conceptual distinction between public law and private law’.

Loughlin uses the Malone case as a barometer of the constitutional changes we have undergone. Malone was an antique dealer who was charged in 1977 with handling stolen property. At his first trial, which ended inconclusively, it emerged that the police had been tapping his telephone pursuant to a warrant issued by the home secretary. No law allowed this, but no law forbade it. To prevent the use of the intercept evidence at his retrial, Malone sued the state for a declaration that the phone tap violated his legal rights. He failed in the English courts on the ground that there was at that date no law against phone tapping, but won resoundingly in Strasbourg on the ground that under the European Convention on Human Rights the UK could violate his privacy only as prescribed by law.

One result has been a statutory surveillance regime shrouded in secrecy, part of a growing constitutional model which has led some of us to wonder whether the tripartite separation of powers – legislature, judiciary, executive – conventionally derived from Locke, Montesquieu and Madison still holds good. The security apparatus is today able in many democracies to exert a measure of power over the other limbs of the state that approaches autonomy: procuring legislation which prioritises its own interests over individual rights, dominating executive decision-making, locking its antagonists out of judicial processes and operating almost free of public scrutiny. The arbitrary use of sweeping powers of detention, search and interrogation created by the (pre-9/11) Terrorism Act, which recently made headlines with the detention of David Miranda at Heathrow, illustrates a long-term shift both in what is constitutionally permissible and in what is constitutionally acceptable. The former may be a matter for Parliament, but the latter is still a matter for the rest of us.

Despite all this, access to justice remains, in principle at least, a pillar of our constitutional law. Without it, the rule of law lacks substance. The long-standing constitutional convention that the Lord Chancellor should be a senior lawyer was not a mere genuflection to the judges. It reflected the fact that the separation of powers properly denies the judiciary a voice in government, so that unless a senior cabinet minister speaks for the justice system the equilibrium between the limbs of the state is jeopardised. The problem was that, until 2005, the Lord Chancellor wore three hats: speaker of the Upper House, cabinet minister and head of the judiciary. Because there was one day going to be trouble in Strasbourg over a politician presiding in a member state’s highest court, the Blair government took the opportunity to dismantle the system overnight. It made sense to make the Lord Chief Justice head of the judiciary, but making the Lord Chancellorship a secondary occupation of the new secretary of state for justice was more than a simple consolidation of tasks: by depriving the judiciary of a voice in cabinet, it exposed the legal system to the vagaries of politics and policy, with profound implications for the rule of law. We are now seeing the consequences.

Since the mid-17th century, no non-lawyer has held the office of Lord Chancellor. The decision in 2012 to put a political enforcer, Chris Grayling, in charge of the legal system carried a calculated message: the rule of law was from now on, like everything else, going to be negotiable. The incoming legal aid reforms were introduced by a consultation paper which gave a dismissively short time for responses and parodied its own case for attenuating legal aid by pointing out that people affected by unlawful state action ‘may represent themselves in court, seek to resolve issues by themselves, pay for services which support self-resolution, pay for private representation or decide not to tackle the issue at all’.* This is an argument not for modifying or reducing legal aid but for abolishing it, something the Treasury has wished it could do for half a century, but which the consultation paper, describing legal aid as a ‘hallmark of a fair, open justice system’, purports not to support.

Instead, Grayling’s proposal is to undermine judicial review by starving claimants of legal aid on several fronts. One of these is to be a ‘lawful residence’ or ‘strong connection’ test, which will prevent abandoned children, trafficked women and other vulnerable non-nationals, along with foreign nationals harmed or abused by the UK in their own countries, from contesting unlawful official acts affecting them. A second is prison law, an area of legal practice which since 1980 has let much needed daylight into a system which until then stood largely outside the law. Here the paper, seemingly unaware of the way prisoners’ claims are already handled, proposes to take away access to justice for prisoners (including, for instance, children and expectant and new mothers in the prison system), in the belief, which three decades of judicial review have shown to be mistaken, that the prison complaints system and the prisons ombudsman are sufficient for the redress of illegality and unfairness.

The third method is subtler: to deny legal aid for all judicial review claims (in which much of the cost is incurred in the early stages) until and unless a judge gives them the go-ahead. In other words, the entire financial risk of initiating a claim is to be borne by the claimant’s lawyers. The superficially attractive reason is that it will inhibit the making of long-shot or speculative claims at public expense, but it is supported by no evidence, and the argument advanced in support of it – that the claimant’s lawyer ‘is in the best position to know the strength of their client’s case’ – displays a depressing degree of ignorance about how judicial review works. More often than not, it is the defendant authority which holds most of the relevant cards, and in many cases it holds on to them for longer than it is supposed to, either because there is too little time for proper disclosure of documents or because sitting tight affords the best hope that the claim will go away. The departmental calculation is that indigent claimants’ lawyers will be deterred from taking on all but sure-fire claims. In proposing that other claimants can be left to their own devices without injustice, the paper makes no attempt to confront the consequences: a plethora of claims made by litigants in person, clogging up the courts as judges try to discern arguable points in the chaos of paper, and costing public authorities large sums in irrecoverable costs as they attempt to respond to such claims.

Grayling (who in 2010 as shadow home secretary drew criticism for his slanted use of comparative crime figures) introduced his reforms by claiming on the Today programme that in 2011 only 144 out of 11,359 applications for judicial review had succeeded. Since 144 was the number of judicial reviews which succeeded at a full hearing, the correct denominator was 356, the total number of judicial reviews that had got as far as a full hearing. The success rate in court was thus not, as Grayling claimed, less than 2 per cent (in his words ‘virtually none’): it was more than 40 per cent – a very respectable rate compared with other litigation, and no token whatever of profligacy in the use of legal aid, which had funded about a third of the claims.

Grayling’s consultation paper appears not to comprehend that of the 11,000-odd judicial review claims which were initiated in 2011 but never came to trial, a substantial proportion will have been partly or wholly successful without need of adjudication. We know from the ministry’s own statistics that something approaching half of the legally aided claims were withdrawn or settled before a judge was asked for permission to proceed, and independent research by the Public Law Project (confirmed in a letter to the attorney-general by the team of barristers who represent the government in court) indicates that, of these, a majority will have been compromised in the claimant’s favour. These are now, however, among the claims which are to be denied legal aid, forcing claimants’ lawyers to insist on payment of their full costs as a condition of settlement with cash-strapped public bodies, and so driving more, not fewer, viable claims into court. Beyond this large class stands a further cohort of claims which, once intimated by correspondence, will have resulted in reconsideration or capitulation without even the need to issue proceedings. It is perfectly true that some of these compromises will have been made by local authorities unwilling or unable to face the cost and risk of litigation; but that is not to say the claims were unfounded. In the round, judicial review is an economic and effective branch of litigation, performing a constitutionally critical role in keeping the exercise of public power within the law, and legal aid for it is for the most part money well spent.

So what is all this really about? The reasons for the endeavour to stifle judicial review claims made by people without much money (the better-off will still have unimpeded access to the law, however undeserving their case and however exiguous their links to the UK) can be found in two main places. One is the consultation paper itself. If the government were truly concerned to reduce the unnecessary expenditure of public money on legal proceedings, the consultation paper would be looking at a number of things about which it is entirely silent. It could look, for instance, at the fact that, once they have paid a fee – the amount varies: £35 for a small money claim, rising to £1670 for a very large one, and £465 for a non-money claim – to set their case down for trial, major litigants get a court and a judge free of charge for as long as their litigation lasts. One may ask why a cost-conscious state is not thinking about the possibility, with appropriate limitations, of adding the cost of using the courts to the costs of the case.

More immediately, the consultation paper has nothing to say about public authorities which play the judicial review system at public expense. Most defendant authorities whose lawyers tell them they are in trouble will settle a claim; but others, given the same advice, will take a chance on opposing the grant of permission to proceed, in the hope that a judge will take their side. It would be straightforward to propose that a public body which unjustifiably resists the grant of permission in a viable case should pay the costs of doing so; but the consultation paper has nothing to say about this, or about penalising late disclosure, or about other ways of saving public funds.

The other, more profound reason is to be found in Loughlin’s account of the present and nascent state of the constitution. He is not an advocate of judicial supremacism, but he recognises that in the course of the 20th century ‘the lack of formal institutional safeguards has been acutely felt.’ In consequence, he suggests, ‘the courts have moved beyond the phase of activism … to a more explicit attempt to reorder constitutional fundamentals’ according to a common law constitutionalism which locates sovereignty, in the words of a leading appellate judge, Lord Justice Laws, not with ‘those who wield governmental power’ but ‘in the conditions under which they are permitted to do so’. Loughlin points out that this is rather more than whistling in the dark: the 2005 Constitutional Reform Act begins by announcing that its content ‘does not adversely affect … the existing constitutional principle of the rule of law’.

Loughlin is not alone in considering that the traditional constitution ‘has become so corroded that it no longer provides a coherent account of the nature of British government’, and that ‘steadily moving in to fill this void has been the judiciary, with its unique, incrementally staged modern version of a constitution expressed as a framework of fundamental law.’ Home secretaries from Michael Howard on have expressed much the same view, although not usually in such good prose. What Grayling is now taking the opportunity to accomplish is what almost all of them – Howard, Reid and Blunkett prominent among them – would have liked to do. Outright abolition of judicial review may be an impossible mission: it is believed that a committee was set up by Margaret Thatcher early in her first government to plan its abolition but was wound up when she was warned that it would provoke a constitutional crisis. But post-2010 pressure on public expenditure, and the chance to publicly exorcise some tabloid demons, have given Grayling an opportunity which eluded his predecessors, not least because there was still in their time a Lord Chancellor to fight the law’s corner against other departmental interests. Blair’s decision to marginalise the post, and its subsequent merger with the new ministry that had taken over the Home Office’s justice functions, created a political empire which is now striking back, through the legal aid system, at a developed constitutional structure designed to keep both administration and law within proper bounds.

So Loughlin’s last chapter is going to need an update. But not quite yet. In recent years a practice has developed – routinely denied by ministers but privately confirmed by their civil servants – of flying kites as lightning conductors: a consultation paper or a bill will include an outrageous proposal which government neither needs nor particularly wants (an example in the legal aid consultation was the proposal, now dropped, to deny criminal defendants any choice in the lawyer to represent them). When it has served its purpose of distracting attention from other objectionable provisions, it can be abandoned. The trouble is that there are so many other objectionable proposals in the current legal aid consultation, it’s not easy to know which, if any, of them are kites. What we do know is what the 145 barristers who, as members of the attorney-general’s panels, argue cases on behalf of the central state, wrote to him in their joint letter: ‘We consider that the proposals in the consultation paper will undermine the accountability of public bodies to the detriment of society as a whole and the vulnerable in particular.’

We are approaching a point, in other words, where departmental housekeeping is being used not to rebalance but to unbalance a central element of the constitution. Thanks to the ill-considered merger of the two functions, a secretary of state for justice is now able to use his departmental powers to occlude his own constitutional role as Lord Chancellor.