Judges in Britain are not supposed to strike down primary legislation that has passed through a sovereign Parliament. Yet that, on the face of it, is what seems to have happened in the UK Supreme Court’s judgment on Prince Charles’s “black spider memos”. And it is deeply paradoxical that it is Lord Neuberger, President of the Supreme Court, who has committed this apparently unconstitutional act, striking at a core “democratic” principle – that Members of Parliament (albeit a chunk of them unelected) pass laws, not judges.
For Neuberger has in the past expressed fears about the UK Supreme Court becoming a “constitutional court” with a dangerous potential for defying Parliament. In a 2009 BBC interview when he was Master of the Rolls (having refused to continue his role as a House of Lords judge into the new Supreme Court) he talked of the danger of “mucking around” with the British Constitution saying there was a risk “of judges arrogating to themselves greater powers than they have at the moment”.
The danger came in large part via the Human Rights Act 1998 which required judges to take account of the European Convention on Human Rights and Strasbourg jurisprudence. Broadly speaking this allowed British judges to declare British legislation unlawful (ie incompatible with the ECHR) – on the face of it contrary to the constitutional notion of the supremacy of Parliament.
In 2011 Neuberger asked the question “Who are the Masters Now” and insisted judges could only overrule Parliament if they had “been expressly given that right by the people acting through their democratically elected representatives” – ie Parliament itself. The passing of the HRA allowed this to an extent, with regard to human rights. But the black spider memos case was not a human rights issue – and Neuberger plainly overruled a piece of legislation. The Freedom of Information Act includes a let-out clause, Section 53, giving an exception to the duty to comply with a decision notice or enforcement notice on publication of material. In 2012, the Administrative Appeals Chamber of the Upper Tribunal had said the memos could be released for publication to the Guardian. The attorney general used the exception to block publication. Neuberger ruled that was unlawful.
R (Evans) v Attorney General: the case
The contentious provision in Section 53 says a “decision notice or enforcement notice to which this section applies shall cease to have effect if … an accountable person” (such as a government minister or here the Attorney General) “gives the Commissioner a certificate signed by him stating that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure to comply” with the Section 1 requirement to release the documents.
Among the arguments that Neuberger favoured in overturning Attorney General Dominic Grieve’s refusal to release the memos was that Section 53 was a repudiation of the rule of law. This states, in effect, that not even the Government can breach the law, and assumes the law is as interpreted by a court of law – not a government minister. Grieve had used Section 53 to overrule the Upper Tribunal decision that the memos could be released. Neuberger said:
“A statutory provision which entitles a member of the executive (whether a Government Minister or the Attorney General) to overrule a decision of the judiciary merely because he does not agree with it would not merely be unique in the laws of the United Kingdom. It would cut across two constitutional principles which are also fundamental components of the rule of law.” (Para 51)
These principles are i) A ruling by a court is binding on the parties involved (even ministers); ii) “decisions and actions of the executive [Government] are … reviewable by the court at the suit of an interested citizen”. Grieve’s action under Section 53 breached these principles (or “stands the second principle on its head” as Neuberger would have it). Grieve’s “reasonable grounds” for flouting the Tribunal were simply the same grounds that the Tribunal had already dismissed. He was thus denying the rule of law by i) refusing to be bound by the Tribunal and ii) in effect denying Guardian journalist Rob Evans his right to have a court review his governmental decision.
Neuberger quotes Lady Hale in Jackson v Attorney General  UKHL 56: “courts will, of course, decline to hold that Parliament has interfered with fundamental rights unless it has made its intentions crystal clear”. In other words it will be assumed that any legislation passed by Parliament is not intended to counter the rule of law even if it looks as if it does.
In 2011 Neuberger denied the “rule of law” argument was fundamental in the sense of overriding any legislation that breached the rule of law (departing from Lord Bingham’s rather more Utopian view). Instead he said that Parliament “can, if it chooses, and clearly and expressly states that it is so doing, enact legislation which is contrary to the rule of law” ( Who Are the Masters Now, para 50).
So in the black spider memos case Neuberger could find it in his heart to take on board the rule of law argument because Section 53 of the Freedom of Information Act did not explicitly say its intention was to suppress the rule of law. “In my view, section 53 falls far short of being ‘crystal clear’ in saying that a member of the executive can override the decision of a court because he disagrees with it.” (Para 58) In particular there is no mention of a court or tribunal being overruled in the legislation. Grieve was in effect a party in the Upper Tribunal case and simply disagreed with the outcome; he “received no argument on behalf of the person seeking disclosure, received no fresh facts or evidence, and simply took a different view from the tribunal”.
Neuberger was able to bolster his view with an EU law point as well. European Union law enshrines the right to a fair hearing in article 47 of the EU Charter of Fundamental Rights:
“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.”
The respondents were arguing that the black spider memos contained material about the environment and EU law (Directive 2003/4/EC) requires that advocacy correspondence on the environment be open to the public. So by purporting to overrule the Upper Tribunal decision, Grieve was denying the respondents of an “effective remedy before a tribunal”.
Neuberger, then, in apparently overturning a statutory provision, would deny he has done anything of the sort. Rather he would consider himself to have simply done a traditional job of legal construction, or interpretation, of statute in the light of certain overriding principles. In his own words (in his 2011 analysis of the judgment in R (Jackson) v Attorney-General) he was operating the “familiar [judicial] function of interpreting a statute, not invalidating a statute”.
Where does this leave us?
All this places us in a strange and uncertain position from a constitutional point of view. Neuberger has been a human rights sceptic, in the sense of rejecting the notion that the Human Rights Act should allow the ECHR to trump Parliament. So in 2011 he said:
“ultimately, the implementation of a Strasbourg [ECHR], or indeed a domestic court judgment is a matter for Parliament. If it chose not to implement a Strasbourg judgment, it might place the United Kingdom in breach of its treaty obligations, but as a matter of domestic law there would be nothing objectionable in such a course. It would be a political decision, with which the courts could not interfere.”
To that extent he can be seen as a friend of the Conservatives who loathe the ECHR and trumpet parliamentary supremacy and the right to pursue a distinctly British form of human rights. Yet here, in the “black spider memos” case, he is nevertheless apparently defying Parliament, not even via the ECHR, by finding a provision in a piece of primary legislation ambiguous and rendering it inoperable.
The Prime Minister, David Cameron, has said that the first thing to do about this is look at the Section 53 provision and seek to make it judge-proof. Yet this would now require “crystal clear” wording that says that the Section 53 power is explicitly to counter court decisions – in other words explicitly to breach the rule of law. Neuberger would consider this “unique in the laws of the United Kingdom” – and one assumes even he would find it a frightening precedent (outside very serious security issues or war). In passing such an amendment the relevant government minister would be barring the courts’ natural jurisdiction in reviewing executive decisions. These were the words of Lord Steyn in Jackson on parliamentary supremacy:
“The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.”
That’s not an uncontentious view (Lord Bingham among others strongly rejected it), but it might garner some powerful support among judges. As it happens, the Conservatives are not very interested in the rule of law and are happily preparing to modify it (as well as ditch the Human Rights Act) in their British Bill of Rights. This is likely to create various exceptions to the rule of law right to a fair hearing.
One of the most intriguing constitutional issues coming out of this, of course, is the future position of the Prince of Wales himself, should he become King. He has said he very much hopes to have an activist role as Monarch, continuing to bombard the Government with his thoughts. There is no strict constitutional bar to this – the “unwritten” constitution has developed relatively recently the concept that the Monarch is above politics (and people generally exaggerate the notion that the British Royal Family has a merely symbolic role). Charles could “change” the Constitution simply by assertion (which is very often how it changes anyway). The question is: would anyone want that – even a Tory Government so willing to protect his spidery indiscretions this time around? It is more than likely that the powers that be in the land (who reside neither in Buckingham Palace nor Downing Street) will take him aside and persuade him that it might not, after all, be in his interests to take the role he has yearned for for many decades.
Notes and materials
Lord Wilson’s dissenting judgment
Wilson complained that in rejecting the Attorney General’s appeal the Court of Appeal (and by extension Neuberger and the majority in the Supreme Court) “did not in my view interpret section 53 of the Freedom of Information Act. It re-wrote it”. He suggests Parliament was aware of the seriousness in passing legislation that breached the rule of law and claims (not wholly convincingly) that therefore it imposed eight safeguards in Section 53. The accountable person’s “reasonable grounds” amounts to an “opinion that the public interest in maintaining the exemption does outweigh the public interest in disclosure” (Wilson’s emphasis). (The provision does not actually say this.)
He notes that “As soon as practicable after giving the certificate the accountable person must lay a copy of it before each House of Parliament or, in Northern Ireland and Wales, before the respective Assemblies: subsection (3). Thus there is the facility for almost immediate democratic scrutiny of the use of the override”. But this treats the certificate as a piece of secondary legislation – not sufficiently powerful to clearly override the rule of law, one could argue.
Dissenting in part to Neuberger’s view, Hughes said: “The rule of law is of the first importance. But it is an integral part of the rule of law that courts give effect to Parliamentary intention. The rule of law is not the same as a rule that courts must always prevail, no matter what the statute says. I agree of course that in general the acts of the executive are, with limited exceptions, reviewable by courts, rather than vice versa. I agree that Parliament will not be taken to have empowered a member of the executive to override a decision of a court unless it has made such an intention explicit. I agree that courts are entitled to act on the basis that only the clearest language will do this. In my view, however, Parliament has plainly shown such an intention in the present instance.” He regards the words of Section 53 to be clear and Neuberger’s view “too highly strained a construction [interpretation] of the section”. (Para 154)
He rejects the view that the section should have spelt out that the accountable person could issue the certificate only if new information had come to light after the decision of the Commissioner or the First-tier Tribunal, or saying s/he could issue it if the decision of the Commissioner or court could be shown to be demonstrably flawed in law or fact: “If Parliament had wished to limit the power to issue a certificate to these two situations that is undoubtedly what the subsection would have said.” In effect he is saying it would be wrong for judges to speculate on what restrictions Section 53 might have imposed given it imposed none. It reflects Parliament’s view as it stands; it doesn’t fail to reflect what Parliament’s view might more reasonably have been.
Upper tribunal case: Rob Evans v Information Commissioner 2012.
High Court case: R (Evans) v Attorney General 2013
Court of Appeal case: R (Evans) v Attorney General 2014
UK Supreme Court case: R (Evans) and another v Attorney General 2015
Of black spiders and constitutional bedrock by Mark Elliott
Judges too keen to use human right powers – Neuberger
Neuberger on Civic Duty and the Rule of Law
Also Neuberger’s 2011 speech Who are the Masters Now
And a report on the speech on the UK Human Rights Blog
And also: Neuberger’s 2014 in his Legal Wales Lecture on The UK Constitutional Settlement
Here he noted the rightwing British press’s attacks on “unelected judges flout[ing] the democratic will of parliament”, adding:
“that is indeed what happens in the United States and other countries with a constitution. The democratically elected Senate and the democratically elected House can pass a bill, which is then approved by the democratically elected President, but which is then quashed by the unelected Supreme Court on the ground that it is inconsistent with the Constitution. It is a relatively commonplace event in almost all countries – because almost all countries have a constitution. But in terms of United Kingdom domestic law, it has never been thought to be open to a court to question, let alone to overturn, an Act of Parliament, because we have no constitution.” (para 23)
He says there is therefore a powerful argument for saying “UK is actually more genuinely democratic than the US”. Parliament makes law, not judges. In particular “UK judges cannot override or quash a statute” – though they can declare it incompatible with the European Convention on Human Rights (it then remains for Parliament to repeal or amend it). So he notes “the increasingly quasi-constitutional role that the courts have been playing in the light of the growth of judicial review, the Human Rights Act and EU law”.