JUDICIAL INTERVENTION
Fairness (or what used to be called ‘natural justice’, and may be equated with disproportionality) now seems to dominate the scene of judicial intervention, although so far the courts have not yet fully grappled with a concept that has eluded adequate analysis.
It was best described by Lord Nicholls in Miller v Miller:Fairness is an elusive concept. It is an instinctive response to a given set of facts. Ultimately it is grounded in social and moral values. These values, or attitudes, can be stated. But they cannot be justified, or refuted, by any objective process of logical reasoning. Moreover, they change from one generation to the next. [29]
Much of the problem focuses on the construction of the statutory power of parliamentary language. Until 2000 the rule of statutory construction was the literal rule, that if the words used by Parliament were quite clear they must be applied, even though the result would be absurd or undesirable. The result of the application of this literal rule was that judges tended to look for the intention of Parliament, as if the parliamentarians put their heads together to form an overall state of mind. A classic example of this approach came in 1985 (a pointer to the last two decades of the century) in R v Hillingdon Borough Council, ex parte Puhlhofer,[30] which concerned specifically the local authority’s duty to house the unintentionally homeless under the Housing (Homeless Persons) Act 1977, the first personal housing legislation. The question was: does the ordinary (intended) meaning of the word ‘accommodation’ apply, even though the place which he is thereby compelled to occupy is so lacking in cooking and washing facilities that he is compelled to eat out and to use a locally provided launderette for washing his clothes? The ‘accommodation’ may not be, by reason of its size, capable of accommodating a person, together with others who normally reside with him as members of his family; such a place would not usually be described as ‘accommodation’ in any meaningful sense.
The Court of Appeal (three judges gave lengthy separate judgments arriving at the same conclusion) and the House of Lords, in which a single Law Lord gave the acceptable answer, held that Parliament’s intention could not be for ‘appropriate’ or ‘reasonable’ accommodation to be provided, as Parliament had deliberately not used those words. The trial judge - Mr Justice Hodgson, a wise and humane judge who took a purposive view that a sensible legislature would seek to apply good grammar and government - had held otherwise. The reversal of his ruling by eight judges stuck firmly to the literal rule and held that ‘accommodation’ could not be qualified by the use of ‘reasonable’ or ‘acceptable’ accommodation such as to impute a single, meaningful word to ‘accommodation’, because it might in certain circumstances pertaining to the applicant be unfit for habitation. It might be a misuse of language to describe Diogenes as having occupied accommodation within the meaning of the 1977 Act. Yet a tub was good enough, according to the Law Lords, for someone to live in by the civilised standards of the twentieth century.It is difficult, if not impossible, to be critical of the eight superior intellects, if the starting point for the exercise required in the interpretation of statutory language is the primacy, if not superiority, of parliamentary language. Apart from one critical observation (made hereafter), the higher court judgments (all models of their existing genre) sought by logical reasoning to find that Parliament could not have meant to exclude the personal qualification. If it had, would it not have inserted the qualification? They stressed, not unnaturally, that this was the first occasion on which the elected Government had engaged in housing legislation, a factor of novelty in the search for modern intervention by the State in personal affairs.
But if the approach was not that of an interpreter of the legislation, without regard to the rule of law which imparted a sense of humanity towards the public’s need for reasonable housing, then the Law Lords could not be faulted.
There was some satisfaction from the proponents of Mr Justice Hodgson, that in the Housing and Planning Acts 1986 - the year after Puhlhofer - Parliament promptly disclosed its true hand by reversing the Law Lords’ conclusion. So much for parliamentary intention, or the literal rule of statutory construction of the 1977 legislation!What particularly disturbed the commentators of that period was the Law Lords’ dampener of the concept of judicial review. Put aside the present Lord Chancellor’s desire to curb the use of judicial review by the instrument of limiting the time for applying and reducing the scope of the remedy, now (in October 2014) passing through Parliament in the Criminal Justice and Courts Bill, by filtering out of the system of access the cases that are insufficiently arguable. Through Lord Brightman’s single judgment they said, with vigorous endorsements, that they were ‘troubled by the prolific use of judicial review for the purpose of challenging the performance of local authorities in their function’, and no doubt (for the time immediately thereafter) they would have included central government activities in their injunction. But all that changed in the twenty-first century, with the arrival of the Human Rights Act 1998. Not only did that Act reinforce the use of judicial review, it also encouraged the judiciary to view its new-found functions of elevating human rights and fundamental freedoms from its international law perspective by determining ‘as near as possible’ the compatibility of those rights with English legislation. Events were thereafter (if not before) assumed to share, in dialogue with executive government and legislature, the burden of good government. Lord Bingham’s 2011 book The Rule of Law was the first declaration of a shared judicial responsibility.
In the 1990s, as a deputy High Court judge, I heard a number of judicial reviews in the homeless persons legislation, which was overtaken by the Housing Act 1996. In the course of these reviews I attempted - not always successfully, in the view of the Court of Appeal - to encourage improvements in the quality of administration
of some local authorities towards the homeless population.
I did not experience the problem of excessive jurisdiction of this aspect of judicial review, although I suspect that the legislation of 1996 was partly due to the demands of local authorities that they should fight their housing battles in a more inspectorial role, and less cumbersome and less access to justice provided by the legal procedure before the High Court. Judicial review, otherwise, had begun to flourish.When the UK Supreme Court decided in Jones v Kaney to end the 400-year-old rule that conferred on expert witnesses an immunity from suit for professional negligence, it did so by a majority verdict. No longer were those who gave opinion evidence on scientific or technological issues to be treated as if they were ordinary witnesses of fact. But two of the Justices - Lord Hope and Lady Hale - would have dismissed the appeal, while at the same time agreeing that the reform was necessary; they concluded that the common law rule for witnesses should not be overruled unless and until the subject of expert witnesses had been reviewed by the Law Commission and Parliament. To allow the appeal pending statutory reform was regarded by the two justices as judicially irresponsible. The case presented a kind of dilemma for the Court - the rule should no longer apply, but not yet awhile.
The case demonstrates the respect the courts have for the sovereignty of Parliament; that body alone should alter the law. This attitude confuses the role of the appeal court (or indeed any court in the hierarchy of courts) to decide cases and its effect as law-maker. One need only remind judges that their function is to adjudicate on disputes between rival disputants and not to indulge in any exegesis on the legal topic in issue. Even if it is permissible for a judge in the course of his written judgment to pronounce upon some aspect of the law, he or she indulges an appetite for some exposition of law. It is mere obiter dicta and does not represent any part of the ratio decidendi of the judgment.
It may be found as acceptable or discombobulation to the parties, but it is an excrescence on development of the law. It should be a golden rule, Judge Learned Hand wrote in a letter to his friend, the Chief Justice of Nebraska, that a judge’s duty is to adjudicate a dispute between the parties, ‘not write for eternity’.It is a dilemma exceptionally facing the judiciary in its search for constitutionality. If there is a desire for reform of the law, should that task be left to Parliament and the Law Commission? If defence is deferred in favour of the supremacy of Parliament, any litigant is defeated by the preferment of the legislature. Is obsolescent the same as extinct? Where there is clear evidence that parliamentary action is in the offing, there is every reason for a deferment by the judiciary to the supreme law-making of Parliament. Hence the decision by the Supreme Court on 25 June 2014 to call upon Parliament to consider the pressing social problem of assistance to terminally ill suicides could not be faulted. But five of the nine justices assumed that the courts stood aside only while Parliament indicated the direction of reform (if any). At least that was a signal that law reform may properly be a shared occupation. For the time being, at least, the judges wait to see what Parliament decides should be the future of the Suicide Act 1961 - they have endorsed current legal opinion that it is a criminal offence to assist someone in committing suicide, even though suicide is, since 1961, no longer a crime. As a judicial authority told the House of Lords on the second reading of the Suicide Bill, on 2 March 1961, you cannot logically aid and abet a crime which no longer is criminal. Parliament in the event seemed to decide that assisted suicide should nevertheless be made a crime with a maximum sentence of 14 years’ imprisonment. Logic was overcome by social reality, or at the least a curiosity in legislation. At the time of the Bill, the Bishop of Carlisle told the House of Lords that while he wanted to support the Bill on compassionate grounds and not on punishment, he wanted the law ‘to be dissuasive against the unnatural act of taking one’s own life’.
Would that ecclesiastical view prevail today, or did Parliament listen? If so, what did the parliamentarians intend in maintaining a curiosity? Lord Neuberger’s leading judgment affirmed the criminality of assisted suicide, but did it intend to criminalise the offence? May the true intention have been to mark the future conduct as unlawful, but to do no more: just de-criminalise the offence of assisting the suicide? It might have decided not to go that far in any reform. Criminologically speaking, Parliament has often opted to make the conduct criminal, but to de-criminalise the offence and leave it to the courts to decide on a non-custodial penalty, either a suspended prison sentence or some monetary or community penalty. It is the duty of our courts to interpret the meaning of the language used in the dated context of a statute; there is also a leaning towards the less punitive punishment.All this can be determined quite apart from the duty under human rights legislation to ensure the compatibility of English law (as far as possible) with the right to life and the right to private life. If suicide is still unlawful (although no longer criminal), an assisted suicide does not escape the civil liability of aiding and abetting an unlawful act; it is simply taken out of the criminal justice system. Whatever, however, the penalty for assisting suicide may fairly be, a 14-year maximum seems grossly disproportionate to the giving of sympathetic help to an act which is no longer criminal. In 1961 Lady Wootton expressed doubt about some aspects of the Bill, in particular the maximum of 14 years in prison for aiding and abetting.
No doubt the present penalty (unreformed since 1961) has some symmetry with the penalty system for all aiders and abettors, but that does not debar an argument that sentencing policy dictates changes in penalty structure. Only in 1978 was the Home Secretary’s Advisory Council on the Penal System asked to review all maximum penalties. It recommended a reduction in all maxima, according to a rational scheme reflecting what the courts were in fact handing down. The report has, unhappily, never been implemented. Parliamentary consideration hereafter provides an opportunity for studying maximum and minimum penalties.
Perhaps the lasting significance of the Supreme Court’s judgment is the judicial urge for urgent parliamentary review of a law that has a growing social impact on the humanity and dignity of the distressed dying. Five of the nine justices called on Parliament to consider the law; two dissenters would have found the present state of English law incompatible with human rights. Change may come, in parliamentary and further judicial dialogue working in harmony, if - since the Constitutional Reform Act 2005 - no longer in institutional harness within the legal system.
What lesson(s) should we today learn from the eloquent words of Lord Mansfield - uttered in brilliant, clear and concise English 250 years ago - spelling out the basis of the prerogative writs and establishing thereby the boundary lines of government committed to a constitution? This author’s historical account of Lord Mansfield’s judgment must be treated as under-researched and speculative. Yet if it invites the reader to remain suspicious, it seeks to accept that throughout the centuries there is a record of communis error; there has been a confusion, if not a conflation of events, of the distribution of the powers of government with a separation of the function of those shared powers. We can recall the modern constitutionalism of Lord Bingham in Purdy, who described the position as follows: ‘The final court of appeal is not a legislative body, but a judicial institution. Institutionally, the court cannot create a legislative act, but in terms of the distribution of power among arms of government, it can make law.’ Is there a more resonant expression today of the duty of the courts to peace, order and good government that Lord Mansfield propagated? A separation of the three arms of government means that they share the overlapping powers of government. To make good the author’s assertion, the full report of R v Barker is annexed below.