Jan van Zyl Smit: Promoting the rule of courts or resisting the misuse of courts? A Response to Ekins and Forsyth

December 15, 2015

Editor’s Note: Last week Policy Exchange’s Judicial Power Project published a report by Professors Richard Ekins and Christopher Forsyth on Judging the Public Interest: the Rule of Law vs the Rule of Courts. The Project has invited commentators with a range of views to reply to the report. Some might be expected to be more sympathetic to the report and others much less so. The first reply was by Professor Adam Tomkins from the University of Glasgow, with a second reply by Dr Se-Shauna Wheatle and Professor Roger Masterman, both from the University of Durham. Dr Jan van Zyl Smit from the Bingham Centre for the Rule of Law provides a third reply below.

Whichever way one looks at it, the Supreme Court’s decision in Evans v Attorney-General has constitutional significance. Remarkably, what appeared to be simply a statutory interpretation case became a disagreement about the rule of law, part of the very bedrock of constitutional government, which was invoked on all sides of a divided Supreme Court.

Richard Ekins and Christopher Forsyth, in their incisive report on the case, offer a critique of the Evans decision on three levels. First, they question the legal reasoning by which a 5:2 majority of the Supreme Court decided that the Attorney General’s certificate was invalid. Secondly, they criticise the breadth of the rule of law principle that the majority judgments either explicitly or implicitly invoked, which was to the effect that it would almost never be consistent with the rule of law for the executive to override a judicial decision. Thirdly, they argue that the decision is an instance of a new and growing legal culture which is in itself damaging to the rule of law. They detect in this culture an excess of judicial creativity amounting to judicial overreach, and argue that this risks degenerating into a “rule of courts”. These are serious criticisms, which have led Professor Ekins to describe Evans as a “dangerously wrong” decision. I comment on each of these layers of critique, focusing especially on the more fundamental claims about the rule of law and contemporary trends in legal culture.

The legal reasoning of the Supreme Court majority

At the risk of over-simplification, one could describe the judgments as disagreeing about what it meant for s53 to require a minister to have “reasonable grounds” for reversing the determination of a judicial tribunal that disclosure would be in the public interest.

If simplified in this way, the case seems to turn on the notoriously malleable word “reasonable”. This makes it relatively easy to support the judgments of Lord Neuberger or Lord Mance, if one is sympathetic to their general thrust. But that would be lazy analysis. Reading Ekins and Forsyth compels one to abandon it, as the reader is forced to confront the full detail of the process of evaluating and adjudicating requests for information set out in the FOIA. To take just one example, Lord Neuberger’s interpretation of the ministerial veto makes it more difficult to reverse determinations of the Information Commissioner in situations in which no tribunal proceedings have taken place, which leaves very little scope for the veto to be exercised at all.

Space precludes a fuller discussion of the arguments made by Ekins and Forsyth. My own conclusion is that, at the very least, they show the majority interpretations to be linguistically strained. In itself this is not a fatal defect. Presumptions are sometimes used to justify a strained interpretation, and this is consistent with parliamentary sovereignty if the court fairly concludes that the statutory scheme is not sufficiently clear to establish a contrary legislative intention. In Evans, Lord Neuberger invoked the rule of law as the basis for a strong presumption that legislation would not grant ministers general permission to override the Upper Tribunal’s determinations of the public interest, and concluded that the statute had not made “crystal clear” provision to the contrary.

The rule of law and non-final judicial roles

Not only do Ekins and Forsyth maintain that the statutory scheme is more than sufficiently clear with regard to the scope of the ministerial veto, but they also argue that the rule of law does not support Lord Neuberger’s presumption. Ekins and Forsyth take to be too sweeping Lord Neuberger’s declaration that under the rule of law

“a decision of a court … cannot be ignored or set aside by anyone, including (indeed it may fairly be said, least of all) the executive.”

Some instances of executive override are contrary to the rule of law, they say, but not all. In the former category they place not only the poorly-advised refusal by a minister to comply with a court decision without any statutory authorisation to do so, as seen in M v The Home Office, but also possibly hypothetical statutes which might empower the executive to undo a judicial determination “that the minister has committed a tortious wrong, such as trespass or false imprisonment”.   So far, so consistent with canonical statements of the rule of law, for example Lord Bingham’s second principle that “questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion”.

Is access to government information different because it is a less traditional area of law, or not fully law?   Ekins and Forsyth are at pains to point out that the judiciary has only ever been given a limited and non-final role in adjudicating whether it is in the public interest to disclose information that is subject to a qualified exemption under the FOIA (as the Prince’s letters were). Earlier versions of the Freedom of Information Bill would only have allowed the Information Commissioner and tribunals to recommend that the government disclose information of this kind. When a power of binding determination was eventually adopted, it was off-set by the ministerial veto.

Could it be that the ministerial veto is consistent with the rule of law because it represents an innovation which gives the judiciary a limited and non-final role in an area not previously subject to their authority? Lord Neuberger took a very different view in his judgment, when he warned that

“A statutory provision which entitles a member of the executive … to overrule a decision of the judiciary merely because he does not agree with it would not merely be unique in the laws of the United Kingdom.”

Lord Neuberger did not provide any empirical support for this statement, but it is probably best understood as urging the reader to consider the possible implications of an executive override. Perhaps the most obvious worry is that ministers might abuse their veto for political ends, and that the experience of doing so in the area of freedom of information might encourage similar vetoes to be introduced in areas affecting traditional civil and political rights. Even if executive overrides are only tolerated in non-traditional areas of law, that would represent a kind of rule of law stasis, in which the beneficiaries of new areas of regulation such as social welfare are denied full judicial enforcement of their rights. Ekins and Forsyth point out, however, that the FOIA subjects the ministerial veto to extensive political scrutiny, including obligations for ministers to report their exercise of the veto to parliamentary bodies. In a similar vein, they might well argue that Parliament should be trusted to select the subject matter of any future ministerial vetoes wisely, and establish comparable safeguards.

There is room for a debate here about the relative trustworthiness of the courts and political bodies in supervising the exercise of a ministerial veto. Although the UK Parliament may currently have a good reputation for relatively vigorous political scrutiny of the executive, relying on this state of affairs as a reason to compromise the binding effect of judicial oversight would set a dangerous precedent for ministerial abuses in the future, and a poor example for other countries where political scrutiny is weaker. There is a further sense in which it is problematic to give a non-final role to the judiciary. Doing so effectively amounts to borrowing or even exploiting the authority of the UK judiciary, which has a reputation for independence, while retaining the possibility for the government to ignore their decisions. In the longer run, judicial participation in a scheme of this kind surely risks damage to the reputation of the judiciary, and hence its authority in the eyes of both litigants and the general public. The judiciary already faces similar dangers to its reputation from being required to adjudicate in situations where litigants are denied many of their traditional rights to participate effectively in adversarial court proceedings, for example through the worrying rise and spread, as John Ip has called it, of closed material procedures from which litigants and their counsel are excluded, with only a “special advocate” to plead their case.

Against this background, it does not seem entirely surprising that the judiciary should want to resist a misuse or misappropriation of their authority, particularly in a case such as Evans in which the majority believed that such resistance could be justified by a recognised presumption of statutory interpretation. This way of viewing the case also suggests that it is an essentially defensive decision, aiming to protect the finality that judicial decisions have traditionally enjoyed. It need not have been motivated by any desire to enlarge the domain of the courts beyond ensuring that that where Parliament has entrusted them to adjudicate, their jurisdiction will be final.

The Human Rights Act, developments in legal culture and the “rule of courts”

Judicial motives matter because they may provide some indication of the judiciary’s likely direction of travel. Assuming that Ekins and Forsyth are correct to argue that the Supreme Court misinterpreted the FOIA in Evans, the question then arises whether they are right to see this decision as part of a larger shift in legal culture away from the rule of law and towards a “rule of courts”, a state of affairs characterised by excessive judicial activism and creativity. This is a question of great complexity, given the volume of public law cases decided by the courts in recent years and the empirical difficulty of ascertaining judicial attitudes and investigating how they change over time.

Ekins and Forsyth provide only a brief sketch of this cultural shift and the factors they suggest may be causing it. The most prominent of these factors in their account is the Human Rights Act 1998 (HRA), and I will confine my response to a brief reflection on how it may have influenced the actions and motivations of the courts. According to Ekins and Forsyth, the HRA has enabled judges to “privilege their own view of what should be done (or the view of the European Court of Human Rights in Strasbourg) over the will of Parliament”. This is an allusion to the judicial application of section 3 of the HRA, which requires courts to read and give effect to legislation in ways that are compatible with the Convention rights “so far as it is possible to do so”.   There has indeed been considerable judicial activism in the application of this provision, and I share the unease of Ekins and Forsyth about whether the rule of law, and specifically legal certainty, is well served by treating statutes in this way.

As far as judicial motives are concerned, however, it is a moot point whether courts have embraced this form of interpretation out of genuine zeal for the creative interpretation of statutes. Another, and to my mind more plausible explanation, is that using section 3 of the HRA to rewrite legislation is often a more judicially palatable course of action than issuing a declaration of incompatibility, which bears the trappings of judicial authority but will only be translated into binding effect if Parliament or the executive so decide. In other words, the courts may be seeking to avoid or reduce the need to exercise another non-final role. As Aileen Kavanagh has argued, it will often not sit well with the judiciary to issue a declaration that provides no remedy to the party whose rights have been breached. If this is the case, then the creative style of interpretation emerging from the HRA case law may be an essentially defensive phenomenon, albeit on a much larger scale than the act of resistance that I detect in Evans, a non-HRA case. Once again, a defensive motivation would be significant as it makes it less likely that the courts will embark on a spree of judicial activism in other areas, say in commercial law, where their authority to be the final resolvers of disputes is not being undermined in the same way.


The critique of Evans advanced by Ekins and Forsyth remains forceful. It poses interesting questions about whether the rule of law should permit judges to be given a non-final role under innovative statutes dealing with relatively new areas of legal regulation such as access to government information. I have argued that such innovations rely partly on borrowing the judiciary’s reputation for independence and impartiality, and that there is reason to fear that this may have damaging consequences for the rule of law in the longer term. Finally, the report opens up a timely discussion of the methods and motivations of judges in deciding the hard cases to which such attempts at innovation will inevitably give rise.

Jan van Zyl Smit
Associate Senior Research Fellow in the Bingham Centre for the Rule of Law
British Institute of International and Comparative Law, London

I am grateful to Kathleen Collett, Swee Leng Harris, Lawrence McNamara, Adam Perry and the Judicial Power Project team for their comments on earlier drafts of this post. The usual disclaimer applies.

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