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LAW, DEMOCRACY, AND CONSTITUTIONALISM: REFLECTIONS ON EVANS v ATTORNEY GENERAL

Published online by Cambridge University Press:  11 January 2016

T.R.S. Allan
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Abstract

The difference of judicial opinion in the Supreme Court in Evans provokes reflection on fundamental constitutional principles, such as parliamentary sovereignty and the rule of law. A statute that on its face seems to permit a government minister to override a judicial decision of which he disapproves inevitably raises acute concern; the correct reading of the statute depends on the most persuasive integration of basic principles, placing the text within its wider constitutional context. The Justices deployed distinctions between law, fact, and public interest in rather different ways, reflecting their divergent interpretative approaches. The role of constitutional convention is also of particular interest – central to the legal issues arising, on one view, but largely irrelevant on another. At the root of these disagreements lie contrasting conceptions of law and adjudication.

Keywords

parliamentary sovereigntyrule of lawconstitutional conventionstatutory interpretationlaw and factpublic interestministerial override
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Articles
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The Cambridge Law Journal , Volume 75 , Issue 1 , March 2016 , pp. 38 - 61
Copyright
Copyright © Cambridge Law Journal and Contributors 2016 

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References

1 Evans v Attorney General [2015] UKSC 21; [2015] 2 W.L.R. 813.

2 See further T.R.S. Allan, The Sovereignty of Law: Freedom, Constitution, and Common Law (Oxford 2013), ch. 1. Compare with Perry, S.R., “Judicial Obligation, Precedent and the Common Law” (1987) 7 O.J.L.S. 215, pp. 215–18Google Scholar.

3 A.V. Dicey, “Lectures Introductory to the Study of the Law of the Constitution” in J.W.F. Allison (ed.), Oxford Edition of Dicey (Oxford 2013), vol. I, 185. If Dicey meant only that conventions were not recognised as legal rules (see Munro, C., “Laws and Conventions Distinguished” (1975) 91 L.Q.R. 218Google Scholar, at 229–31), his descriptive categorisation is largely irrelevant to adjudication, which may sometimes require moral or political judgment about the correct content and scope of such rules.

4 A positivist conception of law treats law as fundamentally the product of authoritative sources, any overlap with moral or political principle being dependent on the law's contingent content: official practice is determinative, rather than an interpreter's appraisal of the moral implications of practice. See generally H.L.A. Hart, The Concept of Law, 2nd ed. (Oxford 1994). Dicey treats conventions as a code of “constitutional or political ethics” as opposed to (positive) law: “Lectures Introductory”, above (n 3), at p. 185.

5 I have made this argument at length in Allan, Sovereignty of Law, ch. 2.

6 Compare R. Dworkin, Law's Empire (London 1986); but see also Allan, T.R.S., “Interpretation, Injustice, and Integrity” (2015) O.J.L.S. 1. doi:10.1093/ojls/gqv014Google Scholar.

7 The correspondence in issue took place between September 2004 and March 2005. A further application for environmental information under the Environmental Information Regulations 2004, passed to give effect to Council Directive 2003/4/E.C., can for present purposes be ignored.

8 Freedom of Information Act 2000, ss. 37, 40, 41.

9 Compare with Lord Judge C.J. in the Divisional Court R. (Evans) v Attorney General and Information Commissioner [2013] EWHC 1960 (Admin); [2014] Q.B. 855, at [12]: “It is fundamental to the constitutional separation of powers, the independence of the judiciary, and the rule of law itself that, although judicial decisions may be reversed by legislation (but very rarely with retrospective effect) ministers are bound by and cannot override judicial decisions: in our constitution that power is vested in Parliament.”

10 Evans [2015] UKSC 21; [2015] 2 W.L.R. 813, at [52].

11 Ibid., at para. [16].

12 See e.g. R. v Secretary of State for the Home Dept, ex p. Pierson [1998] A.C. 539, 575, per Lord Browne-Wilkinson; 591, per Lord Steyn.

13 Evans [2015] UKSC 21; [2015] 2 W.L.R. 813, at [58]. Compare Jackson v Attorney-General [2005] UKHL 56, at [159]: “The courts will … decline to hold that Parliament has interfered with fundamental rights unless it has made its intentions crystal clear” (per Lady Hale).

14 Evans [2014] EWCA Civ 254; [2014] Q.B. 855, at [38] (cited by Lord Neuberger at [71]). This followed Simon Brown L.J.'s approach in R. v Secretary of State for the Home Dept, ex parte Danaei [1998] I.N.L.R. 124 in relation to a ministerial decision that contradicted an earlier decision of the special adjudicator on the facts relevant to an asylum claim.

15 Evans [2015] UKSC 21; [2015] 2 W.L.R. 813, at [78]. It was not impossible to envisage circumstances, accordingly, in which new grounds or evidence, relevant to the issue of a certificate, might come to the attention of the accountable person, enabling him to act within the very limited 20 day period allowed (see para. [75]).

16 Ibid., at para. [154].

17 Ibid., at para. [168].

18 Ibid., at para. [177]. Section 53(4) defines the “effective date”, for the purposes of s. 53(2), as the day on which (a) the decision notice is given to a public authority or (b) “an appeal under section 57 … is determined or withdrawn”.

19 Evans [2015] UKSC 21; [2015] 2 W.L.R. 813, at [178].

20 Ibid., at para. [130].

21 Ibid., at para. [131].

22 Ibid., at para. [88].

23 Lord Wilson was clearly entitled to emphasise the “unique array of safeguards” that operated to circumscribe a “unique” executive power. In particular, the power applied only to a decision notice served on a government department and the accountable person had in England to be a Cabinet minister or the Attorney General, who by convention should consult the Cabinet collectively. Moreover, a copy of the certificate was required to be laid before each House of Parliament, providing “the facility for almost immediate democratic scrutiny of the use of the override”. See ibid., at para. [172].

24 Ibid., at para. [155].

25 See further Allan, Sovereignty of Law, ch 5. Compare with Dworkin, Law's Empire, pp. 313–37.

26 “Ordinary meaning” is intended to capture the idea of the “plain words” of the statute – literal meaning adapted as necessary to make sense of the immediate legislative instructions, disregarding broader matters of constitutional principle.

27 Compare R. v Secretary of State for the Home Dept, ex p. Simms [2000] 2 A.C. 115, 131, per Lord Hoffmann, cited by Lord Neuberger in Evans [2015] UKSC 21; [2015] 2 W.L.R. 813, at [56].

28 Evans [2015] UKSC 21; [2015] 2 W.L.R. 813, at [168].

29 Evans [2013] EWHC 1960 (Admin), at [14].

30 Ibid.

31 Ibid., at paras. [89], [90].

32 Ibid., at para. [111].

33 Ibid., at para. [113].

34 M. Elliott, “A Tangled Constitutional Web: The Black-Spider Memos and the British Constitution's Relational Architecture” [2015] P.L. 539.

35 Ibid., at p. 548.

36 Ibid.

37 Ibid., at p. 549.

38 See further Allan, Sovereignty of Law, chs. 4, 5.

39 Evans v Information Commissioner [2012] UKUT 313 (AAC), at [142].

40 Ibid., at para. [76].

41 Ibid., at paras. [77]–[88]. See W. Bagehot, The English Constitution (New York 1889), 143.

42 Evans [2012] UKUT 313 (AAC), at [87].

43 Professor Rodney Brazier gave evidence for the Government Departments (joined as additional parties), but his approach was regarded by the Tribunal as involving “a massive extension of the education convention” (para. 103); see further below.

44 Evans [2012] UKUT 313 (AAC), at [89]–[112].

45 Ibid., at para. [66].

46 Ibid., at para. [68].

47 Ibid., at para. [67].

48 Even Dicey warned that “a lawyer cannot master even the legal side of the English constitution without paying some attention to the nature of those constitutional understandings which necessarily engross the attention of historians or of statesmen” (“Lectures Introductory”, p. 185).

49 Compare with G. Marshall, Constitutional Conventions: The Rules and Forms of Political Accountability (Oxford 1984), 10–12, distinguishing between “positive morality” and “critical morality”.

50 Evans [2012] UKUT 313 (AAC), at [75].

51 Sir Ivor Jennings, The Law and the Constitution, 5th ed. (London 1959), 131, cited by the Upper Tribunal at [74].

52 Evans [2012] UKUT 313 (AAC), at [92]–[112]. See R. Brazier, “The Constitutional Position of the Prince of Wales” [1995] P.L. 401, 404–405.

53 Evans [2012] UKUT 313 (AAC), at [106].

54 Ibid., at para. [174].

55 Attorney General v Jonathan Cape [1976] Q.B. 752; see further Allan, Sovereignty of Law, pp. 65–67.

56 Evans [2015] UKSC 21; [2015] 2 W.L.R. 813, at [132].

57 Attorney General's certificate, para. 9 (quoted by Lord Mance at [132]).

58 Evans [2015] UKSC 21; [2015] 2 W.L.R. 813, at [137].

59 Attorney General's certificate, para. 9 (quoted by Lord Wilson at [182]).

60 Evans [2015] UKSC 21; [2015] 2 W.L.R. 813, at [138], [139]; the claim was also “contrary to the clear and reasoned findings of the Upper Tribunal” (at [139]).

61 Ibid., at para. [142].

62 Ibid., at para. [182].

63 Evans [2012] UKUT 313 (AAC), at [188] (quoted by Lord Mance at [141]). In general, the Commissioner had not given sufficient weight to the public interest in disclosure: “Those who seek to influence government policy must understand that the public has a legitimate interest in knowing what they have been doing and what government has been doing in response, and thus being in a position to hold government to account. That public interest is … a very strong one, and in relation to the activities of charities established or supported by Prince Charles it is particularly strong” (at [160]).

64 Evans [2015] UKSC 21; [2015] 2 W.L.R. 813, at [145].

65 Ibid., at para. [182].

66 Ibid.

67 Evans [2013] EWHC 1960 (Admin), at [108] (judge's emphases).

68 Compare Lord Dyson M.R. in the Court of Appeal [2014] EWCA Civ 254, at [38]: “The fact that a section 53(2) certificate involves making an evaluative judgment (rather than a finding of primary fact) is not material to whether the accountable person has reasonable grounds for forming a different opinion from that of the tribunal.”

69 Evans [2013] EWHC 1960 (Admin), at [109].

70 Evans [2015] UKSC 21; [2015] 2 W.L.R. 813, at [181].

71 Ibid., at para. [162].

72 For a comparable rejection of any clear-cut doctrinal distinction between law and fact in the context of error of law, acknowledging the distinction's sensitivity to the demands of the particular statutory scheme, see Jones (by Caldwell) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19; [2013] 2 A.C. 48: the division between law and fact must take account of policy considerations, including the relative competencies of the tribunal of fact and the appellate court or tribunal (paras. [41]–[47], per Lord Carnwath).

73 See further Allan, Sovereignty of Law, ch. 2.

74 Joseph Jaconelli has rejected my earlier critique of the distinction between “recognition” and “enforcement” of conventions, defending instead a “clear conceptual divide between laws and conventions”: Jaconelli, J., “Do Constitutional Conventions Bind?” [2005] C.L.J. 149, 153, 160–61Google Scholar. I have not, however, argued (as Jaconelli appears to suppose) that a breach of convention, standing alone, “could furnish a free-standing cause of action”. See further Allan, Sovereignty of Law, pp. 65–72.

75 See Evans [2015] UKSC 21; [2015] 2 W.L.R. 813, at [172]; see note 23 above.

76 As Laws L.J. observed, in discussing implicit conditions of Parliament's sovereignty, the rule of law entails that “statute law has to be mediated by an authoritative judicial source, independent both of the legislature which made the statute, the executive government which (in the usual case) procured its making, and the public body by which the statute is administered”: R. (Cart) v Upper Tribunal [2009] EWHC 3052 (Admin); [2010] 2 W.L.R. 1012, at [36].

77 I have suggested that the Canadian Supreme Court mistakenly erected Dicey's descriptive categorisation of rules into legal doctrine in Reference re Amendment of the Constitution of Canada (Nos 1, 2, & 3) (1982) 125 D.L.R. (3d) 1, overlooking the essential role of convention in protecting Canadian federalism from subversion by the manipulation of legal formalities: Allan, Sovereignty of Law, pp. 58–59, 69–72. Transfixed by Dicey's law-convention dichotomy, the Court ignored the implications of its own acknowledgement that the “main purpose of constitutional conventions is to ensure that the legal framework of the Constitution will be operated in accordance with the prevailing constitutional values or principles of the period” (Reference re Amendment, above, 84).

78 Lord Mance observed that “the Upper Tribunal heard evidence, called and cross-examined in public, as well as submissions on both sides. In contrast, the Attorney General … did not. He consulted in private, took into account the views of Cabinet, former Ministers and the Information Commissioner and formed his own view without inter partes representations”: see Evans [2015] UKSC 21; [2015] 2 W.L.R. 813, at [130]; compare Lord Neuberger, ibid., at para. [69].

79 Dworkin, Law's Empire, p. 90.

80 Compare Dworkin's account of “conventionalism” as a conception of law that reflects an ideal of protected expectations: “Past political decisions justify coercion because, and therefore only when, they give fair warning by making the occasions of coercion depend on plain facts available to all rather than on fresh judgments of political morality, which different judges might make differently” (ibid., at p. 117).