Democracy and Judicial Review

July  2015 / 16 No Comments
Law Society of England and Wales, Judicial Review, Democracy and the Rule of LawLecture Given by Robert Griffiths QC on Democracy and Judicial Review at the Law Society
  1. The theme of my lecture can be put in the form of two questions

a. Are Judicial review judges using a misconceive concept of democracy to avoid deciding important legal issues such as assisted suicide

b. Are they wrongly proceeding on the basis that matters of this kind are for Parliament and not for the Courts?

2. Representative democracy is not about just counting heads and leaving it to Parliament.  The Courts are a fundamental democratic component of our unwritten Constitution.  The Rule of Law and the Separation of Powers are hallmarks of our democracy.  They are not antithetical to it.  The resolution of moral, social and even “political” issues are not the exclusive prerogative of Parliament.  The Courts too have a fundamental role in resolving these matters. 

3. Frank Underwood in House of Cards, said “democracy is so overrated.”  This may have come from his reading of Plato and Aristotle who, speaking from the home of democracy thousands of years earlier had expressed their serious reservations about the Athenian constitution.  There is a view that a democratic constitution is in itself undemocratic if it gives all power to the elected government.  This has been referred to as the “tyranny of the majority.”  De Tocquiville, when commenting on the newly formed United States Constitution said,

“I am trying to imagine under what novel features despotism may appear in the world.  In the first place I see an innumerable multitude of men, alike and equal, constantly circling around in pursuit of the petty and banal pleasure with which they glut their souls . . . over this kind of men stands an immense, protective power which is alone responsible for securing their enjoyment and watching over their fate.” 

He was referring to democracy.

4. John Dryden in in the seventeenth century in Absalom and Achitophel said,

“Nor is the people’s judgment always true;

the most may err as grossly as the few.” 

The justification for democracy is not, therefore, that a majority is likely to be right, but that majority voting is fair since it treats everyone equally.  But even here there is a problem, because logically unless there is a confined choice between only two options, majority voting cannot guarantee a majority preference.  The second problem comes from human nature that a majority may oppress unpopular minorities or create repressive laws as a response to an emergency or be used as a tool by a ruling cabal.

5. This country claims to be a liberal democracy, as do most European states.  We have a constitution which has resulted from a compromise between individual freedom and the public good.  Our elected government can restrict our freedom by enacting legislation which prioritises one way of life above another but does not tie the hands of change.  The doctrine of the separation of powers has as its principal objective, the prevention of the tyranny of the majority by dividing up power.  It is in that context that judicial review should be seen as a fundamental check on the downside of majority rule.  In so doing, the application of the remedy will disclose the essential characteristics of a representative democracy.  This means a system of governance which emanates not simply from the will of the people but from the application of the normative values which we as individuals hold intrinsic.   That involves keeping an equilibrium between the general interests of our society and our individual rights. The distinction between general interests and individual rights is at the heart of judicial review.  It is getting that balance right which is the problem. 

6. Lord Hoffman, in R (Alconbury Ltd) v Environment Secretary [2003] 2 AC 295 at page 325 said,

“In a democratic country, decisions as to what the general interests requires, are made by democratically elected bodies or persons accountable to them.” 

He observed that sometimes the subject matter is such that Parliament can itself lay down general rules for enforcement by the courts and cited taxation as an example in that Parliament decides on grounds of general interests what taxation is required, and the rules according to which it should be levied.  The application of those rules to determine the liability of a particular person is then a matter for independent and impartial tribunals such as the General or Special Commissioners or the Courts. 

7. However, often one cannot formulate general rules and the question of what the general interests requires has to be determined on an empirical basis.  Town and country planning, in which every decision is in some respects different, is an archetypal example.  In such cases, Parliament may delegate the decision making power to local democratically elected bodies, or to the Ministers of the Crown responsible to Parliament.  Lord Hoffman’s view was that in that way the democratic principle is preserved. 

8. Professor Jeffrey Jowell has stated that, “it is the prerogative of Parliament to undermine democracy by overriding constitutional principle, however fundamental.  He argues that, “We have moved significantly towards a model of democracy that is based upon limited government rather than majority rule alone.”  This he says is a “fundamental shift” which has been accelerated by the operation of the Human Rights Act 1998. 

9. However, Lord Hoffman’s approach is that there is no conflict between Human Rights and the democratic principle as he argues, “respect for human rights requires that certain basic rights of individuals should not be capable in any circumstances of being overridden by the majority even if they think that the public interest so requires”.  It has been suggested that the familiar refrain in which almost all public lawyers still happily join that Parliament can exclude any and every right, “by express language or by necessary implication” is really a fudge designed to obscure some awkward questions of constitutional authority. 

10. The key issue is, if it were to be accepted that the Courts now properly enforce a higher order of rights inherent in our constitutional democracy and recognise that such rights emanate not from any implied parliamentary intent, but from the framework of modern democracy within which Parliament legislates it may seem that we have repudiated unqualified majority rule.  Both Professor Jowell and Sir John Laws have stated that fundamental rights are not a consequence of the democratic process, they are logically prior to it.  They, therefore, cannot be abrogated by a simple parliamentary majority. In those circumstances it is argued that ultimate sovereignty rests in every civilised constitution, not with those who wield governmental power, but in the conditions under which they are permitted to do so.  It follows that Parliament’s sovereignty cannot be a creature of statute but rests on the judicial interpretation of an unwritten Constitution.  If a higher order law confers it, it must of necessity limit it. 

11. To return to the example of Human Rights given by Lord Hoffman in Alconbury, even rights which are not stricto senso human rights should, “be capable of being overridden in very restricted circumstances” (page 325 D).  He describes those rights as rights “which belong to individuals simply by virtue of their humanity, independently of any utilitarian calculation.”  In his Judgment, the protection of these basic rights from majority decision is for the Courts.  They should have the power to decide whether legislation infringes them and either (as in the United States to declare such legislation invalid or as in the United Kingdom) to declare that it is incompatible with the governing Human Rights instrument.  But he emphasises outside these basic rights there are many decisions which have to be made every day, “for example about the allocation of resources” in which the only fair method of decision is by some person or body accountable to the electorate. 

12. All democratic societies recognise that while there are some basic rights which attach to the ownership of property, they are heavily qualified by the considerations of the public interest.  This can be seen from Article 1 of the Protocol of the Convention;

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions.  No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

13. The first paragraph of the Protocol provides that property may be taken by the State on payment of compensation if the public interest so requires.  Under the second paragraph the use of property may be restricted without compensation on similar grounds.  In Lord Hoffman’s view, “importantly, the question of what the public interest requires for the purpose of Article 1 of the first Protocol can and should be determined according to the democratic principle – by elected local or central bodies or by ministers accountable to them.”  He maintained, “there is no principle of human rights which requires such decisions to be made by independent and impartial tribunals.” 

14. The other fundamental principle which must exist in a democratic society is the Rule of Law.  Where ministers or officials make decisions affecting the rights of individuals, they must do so in accordance with the law.  The legality of what they do must be subject to review by independent and impartial tribunals.  The principles of judicial review give effect to the Rule of Law.  They ensure that administrative decisions will be taken rationally in accordance with a fair procedure and within the powers conferred by Parliament. 

15. Democracy does not mean whatever the people may decide at a given moment.  It means a set of rules and procedures for securing their control over decision making or decision makers on an ongoing basis.  The Rule of Law is the means for ensuring such control and to make it effective.  There are a number of constituent parts. There must first be institutional arrangements in place to affect such control, a democratic electoral system, limits to the powers of judges, ministers and legislators.  There should be a high degree of openness, transparency and accountability on the part of those in power.  There should be an independent and impartial judicial system in place to provide remedies for individuals against illegal State action or maladministration.  There should be a set of guaranteed liberties such as freedom of speech so that the people have the opportunity to express their views and influence government in policy making. 

16. What I have described above can be characterised as popular control which in my view is a fundamental principle of democracy.  The second fundamental principle is political equality.  This is essentially a moral principle that all people should be equal in the exercise of popular control.  We all have the right to express views on what might affect our lives and we all have an equal capacity for self-determination.  It is this principle which ensures that citizens are treated equally before the law and share equal rights of citizenship. 

17. The argument that the United Kingdom has what was described as a “democratic deficit” emerged in the 1980s.  The question is, does it still have that deficit in 2015?  Are there effective institutional arrangements in place to ensure a distribution of power between people and government and between different levels of government?

18. Is there an arguable democratic deficit in the UK in that central government has gained total dominance over local government, so that the latter has become just the means whereby central policy is executed at a local level.  On the other hand, has central government at Westminster seen power over many issues passed to the European Community?  It is arguable that for the democratic deficit to be addressed, there needs to be a clearer division of power between the various levels at which government can operate – local, regional, national and in the case of the EEC, supranational.  Is there not an argument that policy should be determined at that level of government most able to implement it, and that should be the lowest level practicable?  Effective local government is on this view essential to the overall democratic vitality of society.  There is also an argument relating to devolution in Scotland, Wales and Northern Island that regional government should be a feature of a truly democratic system to reflect the legitimate aspirations of people in particular areas of the nation. 

19. The individual today is overregulated, which encourages conflicts between the individual and the State.  The purpose of administrative law is to provide legal rules, institutions and machinery which try to guarantee that governmental functions are exercised efficiently to produce beneficial effects for the individual.  Government policies should be operated in such a way so far as possible not to produce conflict.  Power should be exercised openly, fairly and impartially and individuals aggrieved by administrative action should have recourse to independent dispute resolution machinery and expert advice. 

20. But legal rules, institutions and machinery cannot by themselves create utopia.  Many disputes between individuals and the State fall beyond the range of law.  Complaints about the personal style of administrators and the ways in which they behave towards those lives they affect and the manifold range of conflicts that arise merely from the fact of being governed are unlikely to receive adequate redress in court. 

21. Often issues of democracy come down to who should decide – Parliament, or the Courts?  It is an aspect of the doctrine of the Separation of Powers which is an intrinsic part of our constitution.  Let’s take then a recent example of democracy in action in the recent case of R (Nickleson) v DPP [2014] UKSC 38.  This involved the consideration of the right to assisted suicide.  Mr Nickleson applied to the High Court for a declaration that;

a. It would be lawful for a doctor to kill him or to assist him in terminating his life, or if that was refused

b. A declaration that the current state of the law was incompatible with Article 8 of the European Convention on Human Rights

22. Lord Sumption’s Judgment is of some relevance in that it considers whether an issue of this kind requires a democratic mandate.  He and the other members of the Court took the view that the question of relaxing or qualifying the current absolute prohibition on assisted suicide was a classic example of the kind of issue which should be decided by Parliament.  The first reason he gave was that the issue involved a choice between two fundamental but mutually inconsistent moral values upon which there is, “at present no consensus in our society” (see page 85).  Such choices, he said are, “inherently legislative in nature.”  The decision he said, cannot fail to be strongly influenced about the decision makers personal opinion about the moral case for assisted suicide.  On this point he concluded,

“this is entirely appropriate if the decision makers are those who represent the community at large.  It is not appropriate for professional Judges.  The imposition of their personal opinions on matters of this kind would lack all constitutional legitimacy.” 

23. A second reason was that Parliament had already made the relevant choice in that it had passed the Suicide Act in 1961 and as recently as 2009, amended section 2 of the Act without altering the principle.  He said that in recent years there have been a number of Bills to decriminalise assistance to suicide, at least in part, but none have been passed into law.  On this basis, he observed that there simply has not been enough Parliamentary support for a change in the law and that represented the current position of the representative body in our Constitution.  He cited Lord Bingham’s observations in R (Countryside Alliance) v Attorney General [2008] AC 719 at paragraph 45,

“The democratic process is liable to be subverted if on a question of moral and political judgement, opponents of the Act achieve through the courts what they could not achieve in Parliament.”

24. Thirdly, he considered that the Parliamentary process is a better way of resolving issues involving controversial and complicated questions of fact arising out of moral and social dilemmas.  He stated at paragraph 232;

“The Legislature has access to a fuller range of expert judgement than forensic legislation can possibly provide. It is better able to take account of the interests of groups not represented or not sufficiently represented before the court in resolving what it surely a classic polycentric problem.”

Critical to his analysis on this issue was that where firm factual conclusions are elusive, Parliament can legitimately act on an instinctive judgement about what the facts are likely to be in a case where the evidence is inconclusive or slight.  He concluded that it was for Parliament to act, “where the truth is inherently unknowable.” 

25. Although the above reasoning is that of Lord Sumption, it largely reflects the majority of the Judgments of the Supreme Court in its consideration of the democratic principles which apply to the demarcation between what is for the legislature and what is for the courts.  Lord Neuberger in Nickleson on the issue of assisted suicide at page 27 at paragraph 84 said, “any question of decriminalisation should be left to Parliament as it is a controversial, difficult and sensitive moral and politico-social issue which requires the assessment of many types of risk and the imposition of potentially complex regulations and it is not a matter on which Judges are particularly well informed or experienced.” 

26. In Nickleson the Supreme Court was, it seems to me, saying essentially that the issue before them was not justiciable.  A number of reasons are given for this, none of which in my view are individually or collectively supportive of that ruling.  Lord Neuberger’s list was as follows; firstly the question was controversial.  That cannot be a reason for not deciding an issue.  Nearly all cases raise controversial questions, especially at appellate level.  Secondly, he said the question was difficult.  That again cannot result in the conclusion that it is, therefore, not justiciable.  The third reason was, “it was a sensitive moral and politico-social issue.”  Again, the fact that a question is a sensitive one and raises moral and politico-social issues does not mean that the Court’s jurisdiction to decide it is excluded.  There are many cases decided in the common law which are of such a kind. 

27. Morality and the extent to which the law should enforce morals is a major jurisprudential issue as is exemplified by the Hart / Devlin debate in the 1960s.  Of course law, in its essence, enforces normative values including morality.  The right to assisted suicide is much more than a moral issue.  It also raises issues which can properly be characterised as legal – namely the existence or otherwise of a fundamental right.  For the same reason the fact that it is a politico-social issue (whatever that means) does not make it non-justiciable.  All issues of law could be characterised as having a political-social aspect to them. 

28. Lord Sumption took the view that the view was, “inherently legislative in nature.”  Again, I do not accept that as a good reason for ousting the jurisdiction of the Courts.  The development of the common law meant and means that the Judges make law.  True, not through Acts of Parliament but because of the powers vested in them as the Judiciary.  The purpose of the common law is in large part to supplement legislation and Judges have the power to do that, and have historically done that for centuries.  Although law is an emanation of the State it should be remembered that the Courts too are part of the State.  The doctrine of the Separation of Powers and the Rule of Law vests in the Court the power to determine issues which are not expressly covered by legislation.  The Courts are concerned with the administration of justice and the protection of the rights of the individual and society generally.

29. The right to assisted suicide is arguably a right vested in an individual in the same way as other rights of a fundamental nature such as the right to liberty, freedom of speech, equality of opportunity and access to justice.  If the right to die is a correlative right to the right to live then how can the Courts conclude that it is not a matter for them to consider because of the controversial and difficult nature of the question.  Of course it raises difficult issues which I would more properly characterise as legal and philosophical.  But for the Courts to refuse to entertain the argument is, in my view, an abrogation of their responsibilities as Judges to administer justice.  In fact, it is denying access to the Courts on an issue of fundamental significance as to the rights of man and a matter of public interest relating to the public good. 

30. The common law has historically prided itself on the development of the law in the interests of the public good, as well as the resolution of private disputes between the parties before the Court.  There is a difference between law and justice.  Parliament can enact unjust laws, but the Courts are there to ensure that justice should prevail where the strict application of the law will result in an injustice to an individual or society generally. Interpreting a statute in such a way as to reach a fair and just decision is a proper canon of statutory construction.    

31. Lord Sumption also refused to consider the issue because at present there is “no consensus in our society” and the issue raised matters of “personal opinion.”  Again, the reason why Judges are called upon to decide issues is invariably because there is no consensus as to a matter and the fact that there may be differences of opinion in different persons is precisely why courts are invariably asked to choose between differences of opinion.  He further went on to say that if the Courts went on to consider this matter, “it would lack all constitutional legitimacy.”  With respect, I disagree.  It is entirely legitimate for the Courts and consistent with their obligation to individuals and to society generally to determine matters which, although difficult and controversial, should be determined by the Courts.  There is nothing in the principles of democracy which would preclude such consideration.  The Courts are a fundamental part of the democratic process. 

32. Judges, in my view, would be more informed and experienced in the task of resolving jurisprudential issues of this kind than lay Members of Parliament.  A judicial ruling on whether there is a right to assisted suicide is to the extent that the issue is does that right exist in law and should relief be granted by way of declaration are pre-eminently matters for the Judges.  There would be nothing inconsistent with the principles of democracy in their so doing.  On the contrary, it would be supportive of the two fundamental planks of our democracy – the Separation of Powers and the Rule of Law. 

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