Columnist: Joshua Rozenberg

Courting controversy

In the first of a new fortnightly column, leading legal commentator Joshua Rozenberg considers whether the courts should be able to make advisory declarations on legislation

Should judges help ministers to comply with the law? The courts already tell governments whether they have acted lawfully in a particular case, ruling against them if they have not. But should the courts decide, without waiting for an aggrieved claimant, whether a particular law is compatible with human rights?

At first sight, this seems contrary to everything we have ever been taught about the common law. Decisions depend on the facts of an individual case. Our judges decide real disputes between specific parties.

But the Lord Chief Justice, Lord Phillips – cross-examined last month by his predecessor Lord Woolf – thought there might be some merit in the idea of so-called advisory declarations. So perhaps we should not dismiss the idea out of hand.

The issue first emerged when Charles Clarke was Home Secretary. Three years ago, he tried to ask the law lords how far ministers could go in the fight against terrorism without breaching human rights. Once the House of Lords had banned indefinite detention without trial for foreign terrorist suspects, Mr Clarke needed to know what sort of restrictions he could lawfully impose on suspected terrorists under the control orders he was planning to introduce.

The law lords knew that, sooner or later, they would have to rule judicially on the subject – as they did last October. They rightly refused to meet the Home Secretary, even though they had been told it would be a ‘purely social meeting’. And this view was supported last year by the constitution committee of the House of Lords, an all-party select committee that includes former ministers, former law officers and others with a special interest in constitutional affairs.

‘It is essential that the law lords, as the court of last resort, should not even be perceived to have prejudged an issue as a result of communications with the executive,’ the committee concluded in July.

The next question considered by the committee was whether there should be a system of ‘abstract review’, under which senior judges would advise Parliament whether or not proposed or recently enacted legislation was contrary to human rights. Again, Mr Clarke thought that this would be a good idea and again the constitution committee knocked it down.

‘We believe that it could compromise the impartiality of the senior judiciary and that it would not in any case prevent successful challenges under the Human Rights Act to ministerial exercise of statutory powers,’ peers said.

But that was not to say, the committee continued, that the courts could not make advisory declarations about whether new legislation was compatible with human rights. This was subtly different from abstract review: applications would be brought using ordinary legal procedures, they would arise out of practical situations and the court would hear submissions from two or more parties. In the committee’s view, this was an idea that deserved further consideration.

‘I have reservations about this recommendation,’ the Lord Chief Justice said in oral evidence to the committee last month. He was concerned that a court would be asked to give its opinion without hearing argument from both sides.

But what if the issues were fully debated? An organisation such as Liberty could be brought in to argue that, for example, government plans to extend detention without trial were unlawful. In those circumstances, Lord Phillips conceded, his conclusion might be different.

Pressing his successor on the point, Lord Woolf said he had simply been suggesting that the courts could dispense with the need to find a nominal claimant in exceptional cases where there was a ‘burning dispute which is a matter of great public interest’. The court would have a discretion to hear the case if it was in the public interest.

‘I think there might well be merit in that,’ Lord Phillips responded cautiously, perhaps reluctant to disagree too bluntly with Lord Woolf in public.

But is there merit in the idea? Campaign groups do not seem to have much difficulty in finding a claimant to fight a test case. If nobody is prepared to come forward, then perhaps there is no need for a challenge.

The real point of Lord Woolf’s advisory declaration is that it would be sought at an early stage: before terrorist suspects had been unlawfully detained, for example. But it strikes me that our judges would find it very difficult to decide cases in this way. Even with full argument on both sides, how can a judge rule – in the abstract – that a particular piece of legislation is compatible with human rights? So much depends on circumstances.

And let us imagine that the government wins the declaration it is seeking. Should that really block applications by real claimants at some future date?

Those claimants are bound to argue that some important practical point was not put by the campaign group when the case was argued in principle. Are they to be denied the possibility of further challenge? Clearly, that is what the government would want. But surely a claimant must be allowed to argue that his case may be distinguished from a generic ruling obtained before the effects of the legislation were understood. Surely the applicant cannot be bound by a ruling when he had no opportunity of taking part in the hearing.

And if that proves to be correct, what use was the advisory declaration to the government?

The government said last October that it was ‘not convinced of the utility of this idea’. Neither am I.