The Constitution of Social Democracy

Essays in Honour of Keith Ewing

Alan Bogg, Jacob Rowbottom, Alison L Young, Alan Bogg, Jacob Rowbottom, Alison L Young

• Publisher: Hart Publishing
• Year: 2020
• Print ISBN: 9781509945375
• eBook ISBN: 9781509916580
• Edition: 1
• Topic: Law
• Subtopic: Labour & Employment Law
• Index: Law

This book is based upon the papers written by a group of leading international scholars on the 'constitution of social democracy', delivered at a conference to celebrate Professor Keith Ewing's scholarly legacy in labour law, constitutional law, human rights and the law of democracy. The chapters explore the development of social democracy and democratic socialism in theory and political practice from a variety of comparative, legal, and disciplinary perspectives. These developments have occurred against a backdrop of fragmenting 'traditional' political parties, declining collective bargaining, concerns about 'juristocracy' and the displacement of popular sovereignty, the emergence of populist political movements, austerity, and fundamental questions about the future of the European project. With this context in mind, this collection considers whether legal norms can and should contribute to the constitution of social democracy. It could not be more timely in addressing these fundamental constitutional questions at the intersection of law, democracy, and political economy.

PART I

Judicial Protection of Rights in the Social Democratic Constitution

1

Reflections on Judicial Power and Human Rights

PATRICK ELIAS

I.The Character of Judicial Review

The growth of judicial review has been one of the most striking features of the legal landscape in the last 50 years. It has led to a much greater holding to account of the executive by the judiciary. The basic techniques adopted by the courts for regulating the exercise of power are now firmly established. They were developed in part in the Victorian era but then virtually went into a cataleptic state for some 50 years or so until they were rediscovered, with some vigour, in the 1960s in such seminal cases as Padfield,¹ Ridge v Baldwin,² Anisminic³ and, a little later, Tameside.⁴ Lord Diplock identified the principles in the GCHQ case in 1984 as being illegality, irrationality and procedural impropriety⁵ – a succinct if not entirely accurate summary. Save for the concept of irrationality, these principles are almost exclusively concerned with the manner of decision-making rather than the substance of the decision itself (although the division between the two is not rigid). In practice the test for irrationality was so high that it was almost fanciful to believe that it could ever justify invalidating a measure on merits grounds. Lord Diplock described it in these terms:

By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness”. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it …⁶

In the last 20 years developments both at common law and stemming from the Human Rights Act have expanded judicial review of the merits, transforming the role of the courts and recalibrating the relationship between the courts, the executive and Parliament. The common law developments have in fact been strongly influenced by the Act. First, the common law concept of irrationality has been wholly recast. The courts first recognised that especially in cases where fundamental rights are involved, the decision needs to be subject to ‘anxious consideration’.⁷ In Brind,⁸ a case involving free speech, Lord Bridge indicated what this might involve. He said that where fundamental human rights are at stake, the court should ‘start from the premise that any restriction requires to be justified’,⁹ and that ‘nothing less than an important competing public interest will be sufficient to justify it’.¹⁰ As we shall see, this is essentially the principle of proportionality which lies at the heart of human rights’ law. Another landmark case was ex p Smith.¹¹ The applicant was challenging the Ministry of Defence’s policy of barring homosexuals from the armed services. The House of Lords accepted a formulation of the rationality principle in terms which stated that ‘the more substantial the interference with human rights, the more the court would require by way of justification under the reasonableness test’.¹² This again is redolent of the proportionality analysis.

Subsequent cases in the Supreme Court have stressed the flexibility of the rationality test and whilst the courts have not in terms adopted the proportionality principle as part of the common law – in Keyu¹³ Lord Neuberger expressed the view that it was a development of great constitutional significance which ought not to be taken by a five-judge court – the rationality test now employed by the courts is well capable of embracing it. In Kennedy v Information Commissioner,¹⁴ Lord Mance reviewed the development of the rationality principle and observed that Wednesbury no longer rules; the test varies depending on the nature and gravity of the decision. Kennedy concerned the refusal by the Charity Commission to disclose certain information about the affairs of a particular charity. One of the arguments engaged article 10 on freedom of information. Lord Mance suggested that in that particular context, and given the way in which the common law had evolved, it was doubtful whether it mattered whether Convention or common law principles were applied. They would be likely to yield the same results. He expressed similar views in Pham v Secretary of State for the Home Department¹⁵ when he said that whether the court is dealing with EU law, the Convention or the common law, the intensity of review will depend upon context and often the result will be the same whichever set of principles is adopted. Lord Sumption agreed, suggesting that the traditional rationality test at common law allowed for a more intensive review than was often thought to be the case, and that the Convention proportionality principle was not necessarily as intrusive as was often thought; it all depends on the context. Lord Reed observed that in a number of domestic cases the court had in substance applied a proportionality test, in the sense that there was a lack of proportionality between means and ends, without saying so in terms.¹⁶ Keyu is therefore hardly a barrier to the application of the proportionality principle, albeit under another guise, even where Convention rights are not in play.

In a related development the courts have also recognised the significance of fundamental rights in the context of statutory interpretation. They have adopted what is termed the ‘principle of legality’. In R v Secretary of State for the Home Department ex p Simms¹⁷ the House of Lords accepted an argument that a blanket ban forbidding prisoners who protested their innocence from seeing journalists who might be able to assist them to establish their innocence was a breach of the common law right to freedom of expression. In so far as the prison rules appeared to be cast in sufficiently general terms to permit such a policy, they were read down so as to render the policy unlawful. Lord Hoffmann indicated that primary legislation could be similarly read down. He explained the principle thus:

Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.¹⁸

Whether the courts would ever go further and refuse to apply legislation which infringed fundamental rights is a much disputed question,¹⁹ although the traditional view, as famously enacted by Dicey, is that Parliament is sovereign and the function of the courts is to give effect to what Parliament has enacted. As Keith Ewing has recently argued,²⁰ the principle of Parliamentary sovereignty reflects a particular view of government: it is ‘no more and no less than the legal principle underpinning the political principle that in a democracy there should be no legal limit to the wishes of the people’.²¹

II.The Impact of the Human Rights Act

All this has changed with the Human Rights Act 1998. Parliament has required the judges to test all public law decisions against the template of the European Convention on Human Rights (ECHR). More particularly, it has required the courts to interrogate for Convention compliance not only executive measures and subordinate legislation but even Acts of Parliament themselves. In so doing it has turned on its head the classic perception of the judicial role. The courts do not give effect to the wishes of Parliament as expressed in the legislation; by section 3 of the Act they must where possible give a meaning which is Convention compliant, even where this involves a plain distortion of the natural and obvious meaning. This is akin to the doctrine of legality discussed above. And if they cannot adopt a Convention compliant construction, because the language of the Act will simply not permit it, they can issue a declaration of incompatibility under section 4. Parliament has chosen to limit its own powers and has conferred upon the courts the task of enforcing those limits.

It is true that constitutionally the Human Rights Act does not formally undermine the doctrine of Parliamentary sovereignty, for two reasons. First, the power conferred upon the judges is given by Parliament itself, and it can be taken back by Parliament. This is not a power grab by the judges but a devolution of power by Parliament. Second, the courts cannot formally strike down primary legislation (unlike secondary legislation) even where it concludes that the Act has infringed human rights. The courts can only make a declaration of incompatibility which, in theory at least, Parliament can choose to ignore, although the political pressure to give effect to it is very powerful. This is not least because if the government fails to put the matter right, it will be inviting challenges before the European Court of Human Rights from those whose rights are infringed and, save in the very exceptional case where the ECHR differs from the view of the domestic courts, the claims are certain to succeed.

For the most part, the Human Rights Act was given a good press both by lawyers and politicians. But some commentators did not welcome its enactment. Shortly after the Act was passed Keith Ewing, together with Tom Campbell and Adam Tomkins, edited a collection of essays entitled ‘Sceptical Essays on Human Rights’.²² They were not all sceptical about the existence of human rights, although some were and that is a perfectly tenable position. It was after all the utilitarian philosopher Jeremy Bentham who described the concept of natural rights as ‘simple nonsense: …. rhetorical nonsense, – nonsense upon stilts’.²³ The principal concern of the sceptics was with the effect which the Act would have on the concept of a representative democracy. The mission statement which identified the intellectual starting point of the contributors to ‘Sceptical Essays’ included the following:

All the participants endorse the importance of human rights within any democratic system of government but question whether the primary responsibility for the articulation of these rights ought to be taken away from the normal political processes of representative government.²⁴

It may be questioned whether it is entirely accurate to say that the primary responsibility for the articulation and protection of human rights was being taken away from the normal political processe...

Table of contents

• Cover
• Title Page
• Preface
• Editors’ Preface
• Table of Contents
• List of Contributors
• PART I: JUDICIAL PROTECTION OF RIGHTS IN THE SOCIAL DEMOCRATIC CONSTITUTION
• PART II: PARLIAMENT IN THE SOCIAL DEMOCRATIC CONSTITUTION
• PART III: DEMOCRACY IN THE SOCIAL DEMOCRATIC CONSTITUTION
• PART IV: SOCIAL JUSTICE IN THE SOCIAL DEMOCRATIC CONSTITUTION
• PART V: FRONTIERS OF THE SOCIAL DEMOCRATIC CONSTITUTION
• PART VI: AFTERWORD
• Index
• Copyright Page