Who should decide who decides the public interest?

Feb 16, 2016

In this post Rebecca Elvin reflects on the separation of powers in the UK constitution and argues that politicians, rather than judges, are best placed to determine the public interest. She draws on a recent exchange between  Attorney General Jeremy Wright QC MP and the President of the Supreme Court, Lord Neuberger, which revealed a divergence of views in addressing the role of the Attorney-General; the Supreme Court’s decision in Evans v Attorney General; and the ‘double lock’ warrant in the Draft Investigatory Powers Bill.


Who is best placed to determine the public interest – judges or politicians? In a lecture at UCL last week Attorney General Jeremy Wright QC MP addressed this question, with the President of the Supreme Court, Lord Neuberger, serving as commentator. This unusually public exchange between one of the law officers and the UK’s most senior judges reveals some interesting differences of understanding about the separation of powers. The exchange was structured around three issues: the role of the Attorney-General; the Supreme Court’s decision in Evans v Attorney General; and the ‘double lock’ warrant in the Draft Investigatory Powers Bill.

The Role of the Attorney General

Wright’s lecture began with an analysis of his own office. He pointed to the AG’s central constitutional role in defining and safeguarding the public interest. The office’s responsibilities include upholding and promoting the rule of law, both as principal legal advisor to the government at a ministerial level and as effective head of government lawyers. Wright emphasised that the AG’s decisions are based on an assessment of the public interest, rather than political expedience. He recognised that certain functions of his office represented: “…exceptional and direct interventions in the functioning of the justice system in the interests of supporting the system itself”; in other words, “they are not normal functions of the Executive [but] they are well-suited to be exercised by the Law Officers, who have a foot in both the legal and political worlds.”

For his part, Lord Neuberger acknowledged the AG’s “vital role in maintaining the rule of law and protecting the public interest”. He noted that the office of AG is uniquely placed to appreciate political dynamics and its occupant, unlike a judge, is ultimately answerable to Parliament. Further, unlike other ministers, the AG has access to independent legal advice and a duty to exercise his legal (rather than political) opinion. At the same time, Lord Neuberger characterised the office as “an anomalous position”. He pointed to tensions between the Attorney’s role as a member of the government, appointed by and subject to dismissal by the Prime Minister, and his or her role as an independent guardian of the public interest and legal counsel. Still, he concluded that – provided the AG is a person of principle, intelligence and practicality – the system tends to function well.

Lord Neuberger’s analysis of the office of AG was, on the whole, measured. That said, his characterisation of the office as “anomalous” is ultimately unhelpful and misleading. This characterisation is unhelpful insofar as it implies that there is something unsatisfactory about the fact that the office is at odds with an austere vision of the separation of powers. Yet, as is well known, such a vision has never been a dominant feature of the English constitutional tradition. The characterisation is misleading insofar as it neglects the fact that the office is squarely in keeping with the pragmatic tradition that has been such a feature of our constitutional practice. It would be regrettable if judges or lawyers sought to unravel the office on the basis of this perceived anomaly. It would also be ironic given that a sizable number of judges and lawyers today regret that another “anomaly”, the old-style Lord Chancellor’s role, was sacrificed in pursuit of this rigid separation of powers.

Evans v Attorney General

In an important rebuke to complacent assumptions all too common among some judges and lawyers, Wright challenged the narrative that the government acts predominantly in its own interests and that only judges can be trusted to determine decisions touching on the public interest with any degree of neutrality. It is not necessarily courts that are best placed to take decisions on the basis of the public interest, for example in matters concerning foreign relations or national security. Wright then considered the question of who should decide the public interest under the Freedom of Information Act, explaining how the Supreme Court went wrong in Evans v AG.

Wright was careful not to comment on the future of FOIA in light of its current consideration by theIndependent Commission on Freedom of Information. However, he addressed the decision in Evans,concerning the then AG’s exercise of the ministerial veto under s 53 to override a decision of the Upper Tribunal and prevent the release of letters written by the Prince of Wales to government ministers. As Wright correctly framed it, “the key issue in the case was the constitutional one: who in the end decides what is in the public interest.” He noted that the veto has to date only been used sparingly to prevent disclosure where this is considered to be against the public interest. The statute directed that the final power to determine the public interest in these circumstances lay with ministers. But ultimately a majority of the Supreme Court (in an approached championed by Lord Neuberger) effectively interpreted the ministerial veto under FOIA out of existence, finding that the executive could not take a view of the public interest that differed from that of a tribunal. For Wright, however, the framework, language and legislative history of FOIA reflected parliament’s intention that “the exercise of the veto should be an executive function with democratic accountability for its use through parliament.”

Lord Neuberger expressed reluctance to discuss Evans in light of his own involvement in it, yet nonetheless offered some commentary. In doing so he acknowledged that Evans was a “controversial decision” (which might lead some observers to wonder whether it was wise for the Court’s President to discuss it publicly). As he saw it, Evans ultimately involved an issue of interpretation – that is, whether under s 53 of FOIA a member of the Executive could override a decision of the court on the ground that he disagreed with it. The very unusual feature of the case, as he saw it, was that it allowed a member of the executive to not only make the final decision about the public interest, but to trump the decision of a court. Lord Neuberger explained that protecting the rule of law requires the operation of an independent judiciary and the availability of judicial review of executive action. He stressed that, “it is only in exceptional circumstances, and when it is strictly necessary, that the executive should have the last word and the judiciary be in some way cut out.” This would require very clear statutory language.

In their Judicial Power Project report, on Judging the Public Interest: The Rule of Law vs. the Rule of Courts, Professors Ekins and Forsyth demonstrate how Lord Neuberger’s approach in Evans misinterprets legislation by imposing on s 53 an artificially narrow reading that departs from the intention of parliament set out in the clear language of the statute and, in turn, undermines the veto power granted to ministers. By engaging in this type of overreach, Lord Neuberger compromises the very rule of law he purports to defend and oversees a transfer of the power to determine the public interest from the elected legislature and statutorily mandated executive to the judiciary. (Further commentary on Evans from a range of contributors can be found here.)

Ultimately, what Lord Neuberger overlooks is that the question of who should decide the public interest is settled by positive law and long-standing constitutional practice, which the courts cannot remake in service of a theory of the separation of powers that does not accord with our tradition. The question of how or if to revise this positive law is primarily one for decision by elected politicians, not for judges.

The Draft Investigatory Powers Bill

The exchange then turned to a forward looking question about who should determine the public interest in relation to the ‘double lock’ authorisation process for interception warrants proposed under the Draft Investigatory Powers Bill. This requires that a warrant authorised by the Secretary of State must also be approved by a judicial commissioner in accordance with judicial review principles (usually in advance of the warrant being issued, save in urgent cases). For Wright, the model set out in the draft Investigatory Power Bill strikes a sound balance between democratic accountability and independent judicial scrutiny. On this, the AG and the President of the Supreme Court were broadly in agreement.

It is worth noting concerns about the ‘double lock’ process raised by Lord Carlile, former Independent Reviewer of Terrorism Legislation. In a recent post on this site, he points to the risk that judicial involvement in warrantry would compromise settled understandings of the separation of powers in the UK if judges begin to make decisions that properly fall within the remit of the executive, where access to sensitive information is necessary and processes of political accountability are appropriate. In a separate post, Professor Christopher Forsyth also identifies concerns with judicial involvement in the ‘double lock’ process, particularly in relation to a lack of certainty about how judicial review principles will operate in practice.

Conclusion

What is one to make of this exchange? Lord Neuberger considered that the judiciary and the Attorney General were both ultimately concerned with the rule of law and the public interest – and were “all pulling very much in the same direction”, despite having different views about how these shared goals might be achieved. However, the contest over who ultimately determines the public interest – and the divergence of views reflected both in Evans and in the exchange between Wright and Lord Neuberger at UCL – suggest a moment, at least, of constitutional fracture. These competing perspectives are also reflected in the present discussion of the Draft Investigatory Powers Bill.

The contest over the separation of powers provides both an opportunity for reflection (in the words of the Attorney General) and cause for concern. As we await the consultation on the proposed British Bill of Rights, the tussle over responsibility for the public interest provides a timely reminder that judicial overreach can and does arise beyond the context of the ECHR and the Human Rights Act. And as Lord Neuberger himself stated, in a different context: “it can happen that after exceptionality has been raised to justify a particular course of action in a particular case, that particular course of action – while justified by the unusual facts of the particular case – then inappropriately becomes the norm.” Perhaps the same can be said for the precedent set by the majority in Evans? For our constitution is committed to a separation of powers in which it is for Parliament in the end to settle who should decide the public interest.

Rebecca Elvin, Research Fellow at the Judicial Power Project and DPhil student at the University of Oxford

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