In any book published on constitutional law prior to 2003 there was a detailed analysis of the role of the Lord Chancellor. The office was certainly established by 1066 and lasted almost 1,000 years before the Labour Government attempted to abolish it in 2003. The role of the Lord Chancellor was unique. He, and it was always a he until July 2016, was until 2005 the presiding officer in the House of Lords, a senior cabinet minister and the presiding judge in the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council. As a result of the Constitutional Reform Act 2005 the position of Lord Chancellor was retained, but the functions formerly associated with the post were significantly diminished and the post-holder became the Secretary of State for Justice.
Many judges were concerned that the attempted abolition of the post and the removal of the Lord Chancellor from the judicial sphere were likely to have a detrimental effect on the protection of an independent judiciary from political attack. When the office holder had to act as a senior judge and was in regular contact with senior judges in relation to appointment and disciplinary functions, the judiciary believed that it had a voice in Government to protect and represent its interests. There is no doubt that there has been a dramatic change on that front.
The last three Lord Chancellors were not legally qualified and therefore did not have a pre-existing relationship with any of the professions or personal experience of the conduct of judicial business.
I consider, however, that there is another aspect to this relationship which occasionally is overlooked. Just as the judges believed that they had a protector and person of influence around the Cabinet table and in the legislature, there is every reason to believe that the Lord Chancellor acted as a limiting or moderating influence on so-called judicial activism, particularly in the highest courts where he presided as of right. His regular engagement with senior judges on all aspects of court administration would certainly have provided adequate opportunity to alert colleagues to concerns about the impact of upcoming appeals. I am not in any way suggesting any improper behaviour by any of the holders of the office, but the effect of the removal of the Lord Chancellor in 2005 from the judiciary and indeed from the House of Lords was to take away any subliminal brake he may have exercised upon the development of the substantive law by the judiciary.
It was considerations of this kind that persuaded many that the creation of a new Supreme Court was required if the judiciary was to be truly independent and seen to be so. The walk across Parliament Square in 2009 to the Middlesex Guildhall, where the Supreme Court now sits, was not just a matter of form but was almost an invitation to the members of that court to consider substantively how they should reassess their relationship with the other arms of government in this new environment. I do not intend to burden this talk with examples of cases in which they have done so, but there is no doubt that there has been a dialogue with the executive on various issues. That has included the exercise of the royal prerogative, which no doubt will feature again next month [with the hearing of the Miller article 50 appeal].
Proportionality in human rights law
The next factor I want to look at is the passing of the Human Rights Act 1998. Prior to the passing of that Act the United Kingdom’s ratification of the European Convention on Human Rights gave, from 1966, the right of individual petition to the European Court of Human Rights. The Convention, however, did not give rise to justiciable rights in domestic law and in truth was little used as an aid to interpretation in relation to domestic rights. The passing of the Act required the courts of the United Kingdom to take into account the jurisprudence of the ECHR when determining any question which arose in connection with a Convention right. The effect of this provision was to introduce to the domestic courts a substantial body of persuasive case law on the interpretation of the matters covered by the Act.
I consider that there were two important consequences flowing from s 2 of the 1998 Act. The first was to introduce the concept of proportionality into domestic law. In Bank Mellat v HM Treasury (No 2)  UKSC 39 at para 71, Lord Reed stated that an assessment of proportionality inevitably involves a value judgment at the stage at which a balance has to be struck between the importance of the objective pursued and the value of the right intruded upon. The principle does not however entitle the courts simply to substitute their own assessment for that of the decision-maker.
He identified a four-stage analysis in which the decision-maker must engage in the determination of whether the measure is disproportionate: “(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter” (para 74).
The process of weighing individual rights against state interests which is implicit in the carrying out of the proportionality test was, of course, a novel concept for common lawyers, although perhaps not quite such new territory for Scottish lawyers. It is in my view interesting that it was only in 2013 that the Supreme Court was able to give clear guidance on how the test should be applied in national law, although there had been some assistance from earlier observations of Lord Clyde. The delay suggests that the novelty of the concept required some time to bed in, and that novelty lay in the fact that the court was now engaged in a balancing exercise which was directly relevant to the merits of policy decisions rather than the process by which they were arrived at. Although the court could not simply substitute its own assessment for that of the decision-maker, it was required to review the balance struck by the decision-maker, and depending upon the degree of discretionary judgement to which the decision-maker was entitled, the court may have been obliged to overturn that balance. This was indeed new territory.
The second consequence flowing from s 2 of the Human Rights Act 1998 was the nature of the law with which the court now had to grapple. The obligation to take into account the jurisprudence of the ECHR brought the domestic courts into contact with those legal concepts and standards which informed the content of the rights protected by the Convention. There were a range of Conventions and Covenants recognised by the international jurisprudence as being highly relevant to the content of such rights. Among the most important of these were the United Nations Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, and the Committee for the Elimination of Discrimination Against Women. All of these bodies have produced voluminous reports and guidance which are designed to influence the human rights standards set by other international bodies. Because of its developed systems for enforcement, the approval by the European Court of Human Rights of the standards which they promoted provided a very significant method of validation and enforcement.
Of course, this was very different territory for United Kingdom lawyers. The international instruments, often promulgated through the United Nations, were generally treaties and obligations which the United Kingdom had accepted on the international plane but which on their own gave no justiciable rights in domestic law. Now such international obligations were at the heart of determining the appropriate content of rights and the manner in which any balancing exercise between the individual and the state should be conducted. That, of course, called into question what had been the sharp distinction between treaty rights which were not justiciable in the United Kingdom and domestic law. As a result of the influence of the ECHR it is now common in domestic cases involving the rights of children to see the provisions of the United Nations Convention on the Rights of the Child featuring prominently in the determination of children's rights. Indeed so common is this approach that my esteemed predecessor as Lord Chief Justice of Northern Ireland, Lord Kerr, recently concluded in his opinion in the Supreme Court in a benefits cap case, SG (para 257), that article 3(1) of the UNCRC should be directly enforceable in domestic law.
The last factor to which I want to draw attention is the impact of the European Court of Justice. The influence of that court has increased as the competence of areas subject to EU law has expanded. It has required the courts to recognise that Acts of Parliament on rare occasions have to give way to EU law. The Charter of Fundamental Rights introduced by the Lisbon Treaty in December 2009 has in some cases replicated and in others expanded the protections and guarantees of human rights in connection with Community provisions implementing European law. Unlike the statutory regime of the Human Rights Act 1998, these provisions could be directly effective despite some incompatible piece of domestic legislation. The continuing influence of that court is uncertain.
A new independence
In my view these four factors have contributed significantly to the changed role which the courts now have in our democracy. The removal of the Lord Chancellor from the judicial cohort and the taking away of his responsibilities for appointment and discipline removed what some saw as a potentially limiting factor on the development of a rights-based jurisprudence in domestic law. The establishment of the Supreme Court in 2009 was not a matter of form. While the Appellate Committee of the House of Lords continued without the presence of the Lord Chancellor after 2005, there was a cautious approach to this acknowledgment of independence. Since the Supreme Court was established in 2009, many commentators have suggested that the pace of participation by senior judges in lectures and seminars has increased significantly and that this has been accompanied by a recognition of the extent of the proper role of the courts in our democratic structures.
The term “judicial activism” has been suggested to describe this, but in my view it is not appropriate. Much of what has occurred has been the inevitable consequence of the statutory focus on a rights-based jurisprudence. It was in a sense the inevitable consequence of the introduction of the jurisprudence of the two international European courts and the drawing in through those courts of international soft law. All of this has driven the Supreme Court to scrutinise carefully any suggested limit to its competence. There continues to be considerable debate about the extent of that competence, but it is not the purpose of this talk to address that issue.
[Sir Declan continued by looking at the impact of the changes promoted by these factors in his own jurisdiction by highlighting a number of recent cases. The full lecture can be read here.]
The lecture was given at Dundee University in November 2016 as one of the Jean Clark Memorial Lectures, a series of lectures established by the Trustees of the Clark Foundation for Legal Education in memory of Jean Clark
In this issue
- Family law: still scope for reform
- People's court
- The importance of lawyers in a democratic society
- Thy will be done
- Children's rights and physical punishment
- Pension sharing and professional negligence
- Reading for pleasure
- Opinion: Bruce Adamson
- Book reviews
- President's column
- People on the move
- 400 years – still innovating
- Litigation: a bill to settle
- Access to justice: the small print
- Benefits of devolution
- The changing role of the courts in our democracy
- Core values
- The will bank opportunity
- Deep and meaningful
- The fall and rise of interrogatories
- To act or not to act?
- Immigration issues: more red tape
- Taxman scores winner in Rangers contest
- EIA: the regimes change
- Scottish Solicitors' Discipline Tribunal
- Practitioners or salesmen?
- Where the buck stops
- Law reform roundup
- Cyber basics for lawyers
- Practice points from missives review
- Money laundering update: new regulations in force
- Courts raise the stakes
- May: the force be not with you
- Conference success
- SYLA: 2016-17 in focus
- Ask Ash