The public interest principle[1084]

1. Origins of the public interest principle

The public service principle is closely linked to the public interest principle. It rests on an assumption on the part of rulers and the ruled that there exist among the population substantial shared common—and in that sense ‘public’—interests.

The origins of the concept of public interest and of its development as a consti­tutional principle in democracies, or at least in the UK, are ancient. John Locke in Two Treatises of Government wrote:^[1085]

Whatever form the commonwealth is under, the Ruling Power ought to govern by declared and received laws and not by extemporary dictates and undetermined resolutions... For all the power the Government has, being only for the good of society, as it ought not to be: arbitrary and at pleasure, so it ought to be exercised by established] and promulgated law: that both the people may know their duty, and be safe and secure within the limits of the law, and rulers too kept within their due bounds, and not to be tempted, by the power they have in their hands, to imploy it to such purposes, and by such measures, as they would not have known, and own not willingly.

The assumption that the people who form the whole population are a group—and one whose welfare and interests the government and Parliament are responsible for—was reflected very strongly in the statement of the theory of representation put by Edmund Burke in his famous speech to the Electors of Bristol:

Parliament is not a congress of ambassadors from different and hostile interests which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that ofthe whole; where not local purposes, not local prejudices ought to guide, but the general good, resulting from the general reason of the whole.

Dworkin stated in Taking Rights Seriously:

Arguments of policy justify a political decision by showing that the decision advances or protects some collective goal of the community as a whole...Arguments of principle justify a political decision by showing that the decision respects or secures some individual or group right.^[1087]

Of course the concept of ‘the community as a whole' or ‘the public as a whole' is problematic, as is the balancing of community, individual and sub-group rights and the resolution of conflicts between them. The identification of common or public interests may be done differently by different sections of society and it may be highly subjective. But the public interest principle at least requires that rulers operate on the basis of the public interest as expressed in law, and that where there is no law they form their own honest, altruistic and considered concept of the public interest, in line with their duties of public service, and promote it.

Lord Diplock acknowledged the difficulties of weighing up interests in the passage from Bromley LBC case noted above. Nowadays the populations of the UK and of many democracies are diverse, due to many generations of immigration^[1088], free movement of workers in the EU, and other developments. But the general proposition that it is the duty of rulers to govern selflessly in the interests of the community as a whole is, in my view, ‘foundational’ in liberal democratic systems. Duguit suggests that:

There exists then an intimate relation between the possession of power and the obligation to perform certain services. It is a relation so clearly understood and desired as in itself to pro­vide a sufficient basis for the legal duties of governmentAll over the world to-day every ruler, emperor, king, president, minister, parliament, holds power not for his own but for his subject’s advantage, and the idea is so widespread that every statesman repeats it to nauseation even while in fact he tries to obtain the greatest advantage from his position.⁵⁸

2.

The public interest principle finds expression in both hard and soft law in the UK. Many Acts of Parliament refer to ‘the public interest’ or ‘the interests of the area’, implying, among other things, that the general public in an area shares common interests. I have already noted that in the Fewings case⁵⁹ local authority action banning stag hunting on council-owned land was required to be justified by the authority as being for the benefit of the area and not as a simple exercise of the ownership rights of the council or the indulgence of councillors’ personal morality.

In Chandler v DPP⁶⁰ the House of Lords found that the interests of the state are not the interests of the government of the day. (This is another example of the operation of the public service principle.) However, given that the courts do not consider that they are the constitutionally competent institution to determine what the substantive interests of the state are in any given situation, the House of Lords held in that case that the interests of the state were to be determined (presumably honestly and in good faith) by the government of the day rather than by the courts. In R (on the application of Corner House Research) noted above, Baroness Hale stated that ‘the public interest’ must mean something of importance to the public as a whole rather than just to a private individual’. ⁶¹ In that case, the government of Saudi Arabia had threatened to withdraw from the existing bilateral counter-terrorism cooperation arrangements with the UK and cooperation in relation to UK strate­gic objectives in the Middle East unless a bribery investigation was discontinued. That withdrawal would have had detrimental implications for national security and British foreign policy objectives in the Middle East. The House of Lords held that it had not been unlawful for the Director of the Serious Fraud Office to discontinue the investigation in the light of the threats from Saudi Arabia.

The Cambridge Handbook of Acculturatation Psychology, (Cambridge, Cambridge University Press, 2006), chs 11 (Van Oudenhoven) and 23 (L Robinson).

⁵⁸ L Duguit Law and the Modern State, p.44.

⁵⁹ Rv Somerset County Council, exp Fewings [1995] 3 All ER 20.

⁶⁰ Chandler v DPP [1964] AC 763.

⁶¹ R (on the application of Corner House Research) [2008] UKHL 60, at para.53. This case is also discussed in Section B, part 3 above.

⁶² R (on the application of Corner House Research).

of the Director to exercise his judgement independently and in good faith, thus preventing him from delegating it to ministers or others who had not been granted statutory powers to decide.

3. Politicians and the public interest principle

The principle that the substance of some ‘public interests’ is to be determined by the government of the day (or by Parliament, or the official with legal responsi­bility for the decision) rather than by the courts must, it is suggested, be right, but only if—as is supposed to be the case in the UK—the government or Parliament are operating in a system of checks, balances and accountability that is weighted in favour of the public interest and not the interests of politicians. Weighting in favour of the public interest is promoted, if not guaranteed, by the conventions of ministerial responsibility to Parliament, openness via the Freedom of Information Act 2000, appointments of civil servants and other officials on merit, and the avail­ability of judicial review—among other checks and balances. These combine to put pressure on officials determining where the public interest lies to do so without regard to their own interests. This is why the appropriateness of accountability mechanisms is crucial: some accountability mechanisms, eg.

Much of the discussion of the public interest in this section of the chapter so far has been of the notion that the whole of the public has shared or joint interests, and of the question by whom the general interest is to be determined. The focus has not, then, been on arguments about the content of ‘the public interest’.^[1089] In many consti­tutional arrangements in the UK, it is assumed that the accountability mechanisms in place, including the public service principle, should ensure that the public interest principle prevails in governmental decisions.^[1090] The Human Rights Act 1998 (HRA 1998), with its incorporation into UK law of most of the articles of the European Convention on Human Rights, assumes broad, nationwide public interests in, for instance (depending upon the right at stake) national security, territorial integrity, public safety, the economic well being of the country, the prevention of disorder or crime, the protection of health or morals, public order, and the protection of the rights and freedoms of others. These public interests can form elements of legiti­mate justifications for overriding an individual’s Convention rights. The courts are guided in the weighing exercise by s 3 of the HRA 1998, which imposes a duty of compatible interpretation of UK law with Convention rights, and by s 4 which, by granting the courts powers to make declarations of incompatibility, returns responsibility for the weighing of interests to the government by way of remedial orders to remove incompatibility. These provisions thus demarcate the political responsibility of the executive and Parliament from the legal responsibility of the court for, and their duties in relation to, weighing up public and private interests.

4. Social conventions and the public interest

The public interest principle has parallels in social conventions governing the many sub-groups in the population. It is not just a matter of the national interest. Within any collection of people who consider themselves to constitute a group— Scots, Welsh, Londoners, Brummies, members of churches, football clubs and so on—there will be expectations that members will sometimes subordinate their own interests to the general good of the group. Those who do so will be rewarded by other members with respect, cooperation, trust, social status. And those who always put their own interests first or ‘defect’ will be ostracized; perhaps punished as free-riders or cheats. This is a matter of innate human predispositions.^[1091] But in the UK—and no doubt in other liberal democracies—the general assumption is that, given shared interests among the population, it is legitimate and expected of rulers that they will observe the public service and public interest principles.

D.