Features Australia

Adjudication in advance

7 July 2018

9:00 AM

7 July 2018

9:00 AM

What is going on with the top judges in Britain? They sure seem hell bent on travelling as quickly as they can down the judicial activism road. Consider Baroness Hale, last year announced as the first woman to become President of the UK Supreme Court.

This is the same judge who had opted, in a public lecture in Kuala Lumpur in 2016, to discuss the hugely important ‘Brexit’ case about whether the UK government could give notice to leave the European Union as an exercise of executive prerogative, and so ultimately repeal the European Communities Act 1972, or would instead have first to secure the passage of a primary Act of Parliament.

But here’s the thing. Lady Hale chose to talk about this six days after the decision of the lower court had come out. In other words, she gave her views on the case a month before it reached the Supreme Court, of which she was then Deputy President. One does not need to consult the codes of judicial conduct to know that a judge is not supposed to speak publicly about cases they are about to hear. Yet that is what Lady Hale did.  She also told her Kuala Lumpur audience that ‘Another question is whether it would be enough for a simple Act of Parliament to authorise the Government to give notice, or whether [there] would have to be a comprehensive replacement for the 1972 Act’. This is in the context of it at the time being obvious that the government would wish to do no more than introduce a ‘simple Act’.

The point here is that Lady Hale’s words in Kuala Lumpur could leave little doubt that she was not going to find for the government. And it transpired that in that Brexit case the Supreme Court did find against the government; worse, the majority of the top judges (most definitely including Baroness Hale) held that that 1972 Act that had taken the UK into the EU was one of a special set of ‘constitutional statutes’ that could not be treated in the way the government proposed – this idea of there even being such constitutional statutes itself being a judicial creation. The only mercy was that the majority in the Supreme Court (Hale included) held that the passage of a ‘simple Act’ would on this occasion be good enough, thereby averting an outright constitutional crisis.

Of course the UK government did go on to secure the passage of the necessary Act. But being forced to do so amounted to acquiescing in the recognition that these supposed ‘constitutional statutes’ actually existed – and that is nothing less than a revolution in the UK constitution, substituting judicial supremacy for sovereignty of Parliament.

And that brings us to June 7 of this year. That is when the top UK judges chose to engage in what looks like adjudication in advance, and this time not by mistake in a public speech but as a principle of judicial procedure in human rights cases.

The case involved the Good Friday Agreement, which amongst other things required that a Northern Irish Human Rights Commission should be created as an ‘independent’ agency charged with promoting human rights.

This Commission’s main function is advising the government on desirable changes to legislation, but it may also bring or assist with court proceedings in human rights matters. In 2015 the Commission was granted judicial review of the Northern Ireland legislation under which abortion is available on a more restricted basis than in the rest of the UK. Crucially, the Commission brought this case as a wholly ‘abstract’ matter seeking a general declaration that this Northern Irish legislation was incompatible with the Human Rights Act or ‘HRA’ (a statutory bill of rights of the sort many on the Left desire in Australia).

The first question in play, an issue of statutory interpretation, was whether the Commission has the powers to bring an abstract case of this sort, because normally a party needs to have ‘standing’, meaning that its rights are directly concerned.

On this question of whether legislation can be reviewed on such abstract grounds, four of the expanded seven- member UK Supreme Court found that the Commission did not have standing to bring this abstract case. Lady Hale was amongst the minority that thought otherwise. Cynics will note, though, that it will hardly be difficult for the Commission now to find a concerned party who does have standing.

It will be greatly encouraged to do so because it now knows it will win. You see Lady Hale, and in various ways a majority of her colleagues, found that the Northern Irish legislation was incompatible with the HRA. As the majority had found that the case should not be heard at all – there was no standing, remember – they had no legal competence to do this.  Any traditional common lawyer, make that any non-human rights lawyer, would say this issue cannot be answered before an actual case reaches the court. Yet the Supreme Court has, in a wholly abstract way, told parties the result of future litigation in advance! This simply is not adjudication as adjudication previously has been understood. It is the most blatant form of judicial legislation conceivable. Democrats amongst us, and those worried about judicial over-reach, will suspect that the Commission brought its case because it knew that it would not win democratic support in Northern Ireland for legislative change. So instead we get talk of the ‘rule of law’ having to prevail when what is meant by the rule of law is that the judiciary will decide such contentious political issues rather than the electorate.

The UK Supreme Court has again lighted the way for those who want their human rights agenda delivered by unelected lawyers rather than the voters, on this occasion by giving them an assurance that on the Northern Ireland abortion issue their journey will be successful.

The HRA was passed on the basis that it would not create judicial supremacy. That is looking ever more misleading. There is now persuasive evidence that the senior judiciary in Britain, with some commendable exceptions, is in the process of remaking the UK constitution in order to give the judiciary a huge say on fundamental issues about which there inevitably is legitimate political disagreement. You could be forgiven for thinking the senior judiciary in the UK is out of control.

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