Mark Elliott: Judicial Power in Normative, Institutional and Doctrinal Perspective – A Response to Professor Finnis

November 3, 2015

Editor’s Note: Earlier this month Policy Exchange’s Judicial Power Project hosted a lecture by Professor John Finnis on Judicial Power: Past, Present and Future. The Project has invited leading commentators from Australia, Canada and the UK to reply to the lecture. In keeping with this website’s goal of encouraging debate about the proper bounds of judicial power, we have invited replies from commentators with a range of views. Some might be expected to be more sympathetic to Professor Finnis’s lecture and others much less so. We begin with a reply by Professor Mark Elliott from the University of Cambridge.

Professor John Finnis’s lecture on judicial power, part of Policy Exchange’s Judicial Power Project, is as stimulating as it is provocative. Judicial decisions and doctrines that stand at the forefront of contemporary public law are castigated: the seminal Belmarsh Prison case is a “shipwreck”; the Supreme Court’s recent decision in Evans is so “extravagantly Procrustean” as to conflate the rule of law and the rule of judges; curial deployment of the proportionality doctrine merely serves as cover for accountability-free judicial legislation. These arguments are powerfully advanced; but their uncompromising nature ultimately serves, at least to some extent, to undermine them.

In this response, I argue that Finnis is insufficiently attentive to three crucial matters — concerning normative, institutional and doctrinal considerations — that ought to inform analysis of both the proper limits of judicial power and the extent to which judicial practice is respectful of those limits. I will also argue that while it is helpful to distinguish between these three issues, the distinctions between them are necessarily porous. None of what follows should be interpreted as supportive of judicial supremacism or as dismissive of the need for vigilance regarding the scope of judicial authority. Rather, the central concern of this piece is to address the nature of the debate concerning judicial power, and to consider the extent to which Finnis’s analysis adequately engages with the essential components of that debate. I do not therefore set out to prescribe different answers from those arrived at by Finnis (although I do disagree, as will be at least implicit, with some of his conclusions). Rather, I argue in favour of a mode of analysis that is more open to the contestability of the normative issues in play; that takes greater account of the way in which underlying normative questions may play out differently in different institutional contexts; and which is more attentive to the doctrinal reality of judicial practice.

In advocating such an approach, I acknowledge that there are inevitably limits to the degree of detail into which a lecture such as Finnis’s can go. However, since my concern is, at least in part, with the nature of the debate concerning judicial power, I focus in this piece on Finnis’s lecture itself (as distinct from other aspects of his work) as a contribution to that debate.

Normative Perspective

In the lecture, Finnis adopts, but engages in little by way of justification of, a rigidly preconceived view about what courts should — and should not — do. The many things that courts should not do include exercising judicial power so as to reform the law; assessing the merits of legislative reforms; subjecting the exercise of certain executive prerogatives to judicial review; and determining whether legislation that engages human rights is necessary and proportionate. These proscriptions arise, says Finnis, not just because courts’ institutional limitations make it likely that they would make a mess of such tasks, but because, as a matter of principle, constitutional functions that involve or impinge upon law-making should be undertaken only by those who are accountable to the public, whereas judges are “rightly made immune from any requirement to answer for their judgments”. Equally, says, Finnis, because it is the courts’ function to apply the law rather than to make it, and because the division of constitutional authority is a matter of legal allocation, judges are bound by the rule of law to adhere to extant restrictions upon their functions — hence, for instance, the enduring relevance that he ascribes to centuries-old limitations pertaining judicial intervention in relation to the use of prerogative powers. (Admittedly, Finnis acknowledges that developing the law, as distinct from legislating, falls within the judicial role, but he does not appear to envisage that that developmental role has much if any purchase in respect of legal allocations of constitutional responsibility.)

A difficulty with Finnis’s mode of analysis is that it presents as uncontroversial truths matters that are in reality both highly contestable and keenly contested. Yet the proper role of the judiciary — and so the legitimate extent of judicial power — falls to be determined by reference to underlying normative criteria that are inherently contestable. For instance, the extent to which judicial insulation from public accountability should be regarded as a restriction upon their capacity to evaluate enacted legislation or to shape it interpretively by reference to human-rights standards or other constitutional values turns upon the extent to which a countermajoritarian perspective is considered necessary and valuable. It also turns upon the extent to which democracy is understood in representative as opposed to (say) participative terms, the latter arguably being facilitated by the participative opportunities afforded by judicial proceedings to those whose marginalisation allows them little influence within representative-political discourse. The proper extent of judicial power can only be a function of considerations such as these; it cannot inform the resolution of such prior contestations.

Similarly, it is possible to argue — as Finnis appears to in his remarks concerning judicial treatment of the prerogative — that courts should treat the constitution as a museum, with courts acting as little more than curators responsible for looking after whatever legal artefacts it contains. On this view, the judicial role is limited to the mechanical application of constitutional rules however archaic they may be because those rules are legal rules and the rule of law requires judges to apply the law. Yet, as need hardly be pointed out, this characterisation of the judicial role sits in stark tension with competing, interpretivist accounts of the courts’ function. It is far beyond the scope of this piece to engage in, far less to attempt to resolve, that tension. The point, rather, is a more modest one: that the tension exists precisely because questions about the proper role of courts are normatively contestable, and that the debate about these matters that the Judicial Power Project aims to stimulate will be an inadequate one if it fails to embrace the rich seam of normative contestation that informs positions on second-order questions of judicial authority.

Institutional Perspective

That said, such questions do not turn exclusively upon the resolution of underlying normative controversy. They are also, and highly, institutionally sensitive questions. Such institutional sensitivity is exhibited in at least two ways. On the one hand, the principles of institutional design adhered to within any given set of constitutional arrangements will, at least to some extent, indicate the position that a particular society has taken in relation to relevant normative questions. On the other hand, to the extent that constitutional design — as it nearly always will — leaves some questions as to the balance of institutional authority unresolved, such institutional architecture as exists provides a framework for navigating those conundrums that remain.

Against this background, Finnis’s analysis is curiously inattentive to the acutely institutionally sensitive nature of the questions that it confronts. For instance, excesses of judicial power are ascribed to the European Court of Human Rights, the United Kingdom Supreme Court and the United States Supreme Court. However, such putative excesses are largely identified by reference to an evaluative template that takes little account of the vast differences of institutional context that arise. In the United Kingdom, the institutional tapestry is an intricate one that calls for attentiveness both to its own details and to its points of divergence with institutional arrangements that apply elsewhere. Such points, however, receive little attention in Finnis’s lecture, which proceeds on the implicit but inadequately substantiated premise that contextualist institutional arguments hold little water in the face of an apparently universalist (but, in reality, highly contestable) notion of what judges should and should not do.
Without seeking to evaluate the persuasiveness of the arguments that they might imply as to the legitimate reach of judicial authority, the following features of the British institutional framework might be considered especially pertinent. First, the capacity of the executive branch in the UK (parliamentary arithmetic permitting) to cause Parliament to confer upon it generous administrative powers might be thought to found an argument in favour of judicial vigilance in respect of the exercise of such powers. Second, this point is underlined by the form of bicameralism that obtains, given that the only chamber that might be somewhat politically independent of the executive has powers that are heavily circumscribed by both law and convention. Third, the fact that Parliament is sovereign is clearly important, but its implications are complex and to an extent contradictory. The doctrine of parliamentary sovereignty limits judicial power by denying the courts any authority to refuse to enforce Acts of Parliament. Yet the very existence of parliamentary sovereignty might be considered to remove the sting from certain criticism of judicial activism in respect of both judicial review of administrative action and judicial subjection of primary legislation to constitutionalised modes of interpretation, since the sovereignty doctrine ensures that, any such activism notwithstanding, Parliament retains the final word. Fourth, the reality of the legislative process — as distinct from the idealised picture of it painted by Finnis — is surely relevant to any assessment of the justifiability of a given degree of judicial oversight either of the legislative outputs of that process or of the exercise of executive powers conferred by that process.

Fifth, the fact that the Human Rights Act 1998 denies courts any authority to strike down primary legislation seems clearly relevant to the extent (if any) to which the courts’ role under the Act sits in tension with traditional understandings of the judicial role. (Much of Finnis’s argument, however,  echoes arguments that might more appropriately be deployed against strong-form judicial review that extends to full strike-down powers.) Sixth, the fact that Parliament has, almost without exception, amended Acts of Parliament that courts have declared to be incompatible with Convention rights might be thought to imply legislative acquiescence in the exercise of such new judicial authority as the 1998 Act confers. Alternatively, such acquiescence as has been manifested might be thought to demonstrate that objections to the courts wielding such authority are not universally shared, not least because such objections have not, over time, been consistently raised by Parliament itself (to the extent that Parliament as an institution can be taken to have a single position on any issue at any given point in time). Seventh, and more generally, the fact that it is in the first place Parliament that has assigned to the judiciary certain functions by means of enacting the 1998 Act might be thought to be highly pertinent to any assessment of the constitutional propriety of the judiciary’s performing such functions.

Against this background, Finnis occupies a curious position, the implications of the Human Rights Act being a good illustration of a broader tension. Finnis is content for the rule of law to operate so as to constrain the judicial function. Yet he seems resistant to the notion that the rule of law might operate so as to expand the boundaries of the role that judges may legitimately play by means, for instance, of the allocation of additional functions by Parliament to the courts via an enactment such as the 1998 Act. In this way, it appears that the institutional reality of what the law — and so the rule of law — requires is judged capable of having limiting but not liberating effects. It is not obvious why this should be so. Indeed, Finnis’s reliance upon the rule of law as a constraining force highlights a broader tension in his argument, in that it concedes the pertinence of extant institutional arrangements whilst failing to acknowledge that their implications can cut both ways. A similar point can be made in relation to Finnis’s reliance upon parliamentary sovereignty, which is invoked as a key feature of the institutional order that limits the proper extent of the judicial role. But this too is a double-edged sword: if the existence of parliamentary sovereignty carries such implications, then presumably account must also be taken of such changes to the institutional landscape as are wrought by the exercise of parliamentary sovereignty, such as by the enactment of the 1998 Act. If the proper extent of the role of the British judiciary is a function of institutional as well as normative considerations, then comprehensive rather than selective engagement with relevant institutional factors is necessary. And if, on the other hand, institutional considerations are not relevant, then parliamentary sovereignty is neither here nor there; it certainly cannot bolster normative arguments about the limits of judicial authority.

Doctrinal Perspective

The debate about judicial power also calls for attentiveness to the way in which courts exercise such powers as are allocated to them. Finnis is dismissive of judicial attempts at such attentiveness. Having argued that the tasks assigned to courts by such instruments as the European Convention on Human Rights and the Human Rights Act 1998 are “essentially non-judicial tasks”, Finnis goes on to argue that the best the courts have managed to do by way of negotiating this difficulty is to “pluck from some rather shady areas of German theology and law the idea of proportionate (and therefore justified) interferences”. Finnis concludes that judicial deployment of the proportionality test — the assistance of German law and theology notwithstanding — “requires the court to assess legislation’s proportionality by [reference to] rights-related criteria so many, vague, diverse if not conflicting, and so open-ended to views about the future that the judge can only be exercising a parallel or overriding legislative, and not judicial power”.

The argument, then, is that proportionality is incapable of being applied in a way that is consistent with the proper judicial role. Of course, the more narrowly that role is drawn — and Finnis draws it conspicuously narrowly — the easier it is for Finnis’s argument to be substantiated. If judges simply should not do the kinds of things that proportionality review requires them to do, then proportionality review necessarily involves the performance of a non-judicial function. Whether the fire that Finnis trains upon the proportionality doctrine is warranted therefore turns in part upon whether his prior characterisation of the judicial role is considered convincing. However, the justifiability of this aspect of Finnis’s argument also turns in part upon whether his characterisation of what is entailed by proportionality review is defensible.

By focussing on the decision of the Grand Chamber of the European Court of Human Rights in Hirst (No 2), concerning the right of prisoners to vote, Finnis selects what might be regarded as an easy target. What Finnis does not show, however, is that proportionality review — either because of its inherent nature or because of the way in which it is judicially applied — is so vague, unprincipled and unpredictable, or so intrusive and interventionist, as to amount to judicial discharge of a non-judicial function. Indeed, the structured nature of the proportionality test is regarded by many as a strength, particularly when it is compared with more traditional doctrinal tools such as Wednesbury unreasonableness. It is true to say that some of the questions with which the proportionality test requires courts to engage entail some novelty as regards the judicial function, the question whether a measure strikes a fair balance between the right of the individual and some competing public-policy objective being the clearest example of this. However, the same is not true of other elements of the proportionality test. For instance, asking whether a right is engaged and whether a measure that engages a right is rationally connected to the public-policy objective that is prayed in justification of the impugned measure are surely judicial tasks according even to the conservative benchmark preferred by Finnis.

Meanwhile, when it comes to engaging with the arguably more avant-garde aspects of proportionality review — such as the necessity and fair-balance questions — courts in the UK have generally been careful to address possible constitutional objections by developing and invoking the doctrine of curial deference. That doctrine, as it has developed in cases principally but not exclusively decided under the Human Rights Act 1998, has often revealed acute sensitivity on the part of the courts to both normative and institutional factors that inform the proper extent of judicial, executive and legislative authority. A jurisprudence has thus emerged that permits — and requires — courts to calibrate and justify the mode and standard of judicial review in ways that far outstrip what went before in substantive-review cases. To characterise proportionality review, as it has developed in the hands of British judges over the last 15 or so years, in the way that Finnis does is to do little more than unfairly caricature it. It does not follow from this that the case in favour of proportionality review — whether in human-rights or other cases — is unanswerable; but it must be answered by something more than Finnis’s analysis offers.

As a footnote to these comments on Finnis’s treatment of proportionality review, it is worth remarking on what appears to be a related, but much broader implication, of his analysis. Finnis singles out the proportionality test for criticism, on account of the fact that he considers it to require courts to undertake essentially non-judicial tasks. This is so notwithstanding the fact that, in cases to which it applies, the Human Rights Act 1998 in effect requires courts to apply the proportionality test in certain circumstances. For Finnis, then, it seems that the perceived constitutional dubiousness of requiring courts to assess proportionality is not fully offset by the fact that Parliament has required them to do precisely that. What, then, of the more familiar scenario in which courts are called upon to examine the legality of administrative action by reference to principles of judicial review that are wholly unarticulated by the relevant legislation? If it is constitutionally dubious for courts to engage in legislatively mandated proportionality review, is it equally, or even more, constitutionally dubious for them to engage in review — on grounds such as Wednesbury unreasonableness, procedural unfairness and breach of legitimate expectation — that is not in any equivalently explicit manner so mandated? On Finnis’s analysis, the answer might well be “yes”, on the ground that even if the application of more conservative grounds of review falls within the judicial role, the development of such grounds in the first place does not. The reality, however, is that Parliament’s acquiescence in the courts’ development of the law in this area amply acknowledges the legitimacy of the judiciary’s role in contributing to the development of the constitutional standards to which those wielding public power are required to adhere. In turn, and more broadly, this recognises the partnership that exists between judicial and political institutions in shaping way in and the terms on which constitutional authority is institutionally allocated. The very existence of the modern law of judicial review thus stands as a crisp rejoinder to the emaciated judicial role that inheres in Finnis’s vision of the courts’ function.

Closing Remarks

I have touched on only a subset of the issues canvassed in Professor Finnis’s rich lecture, my concern having been to address the nature of the debate about what the proper scope of judicial power is and whether the tasks British courts today perform cause them to exceed that scope. It is in the interaction of the normative, institutional and doctrinal matters discussed above that these assessments fall to be performed. It is also such matters that collectively form the constitutional territory upon which any legislative attempt to constrain or otherwise mould the judicial role would fall to be enacted. From Finnis’s perspective, that constitutional territory appears to be relatively barren, the implication being that if Parliament were intent upon clipping the courts’ wings, everything would be up for grabs. Yet Finnis’s normative account of the judicial role is not, and could not be, solely about its limits; identifying those things that are not judicial functions necessarily implies identification of those things that are. This, in turn, implies a corresponding normative account — albeit one that is not articulated in the lecture — concerning the proper extent, and limits, of legislative authority. And one of those limits must logically pertain to not depriving courts of their judicial functions — whatever those functions might be.

This is not to deny the doctrine of parliamentary sovereignty, but merely to acknowledge that it subsists within a constitutional order that also includes other prominent features, including rule-of-law and separation-of-powers doctrines that speak not only to the proper limits of judicial functions but also to the proper limits of other institutions’ respective constitutional roles. Finnis is right to point out that it is not for judges unilaterally to determine the content of or to “remake” the constitution. But it does not follow from this that the courts’ role is as slight and the political branches’ role as sweeping as Finnis appears to suppose. Legislative overreach and judicial overreach pose distinct but equivalently existential threats to our present constitutional arrangements, precisely because the unwritten British constitution functions thanks to a delicate and necessarily implicit comity that informs institutional interactions. As the debate concerning judicial power develops in the coming months and years — as it undoubtedly will, not least in the light of the Government’s plans in respect of human-rights law — it will behove both defenders and critics of “judicial power” to bear this firmly in mind.

I am grateful to Veronika Fikfak, Graham Gee, Hayley Hooper, Natasa Mavronicola, Jonathan Morgan and Jack Williams for their very helpful comments on an earlier draft of this piece. The usual disclaimer applies.

Professor Mark Elliott
University of Cambridge

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