Wednesbury reform will not reverse the Cherry / Miller decision

Team Boris has turned to reform of judicial review, as I have argued they should several times over the last few months.  However a simple change to reassert the Wednesbury rules will not fix the system on its own. It will not overturn Lady Hale’s decision on the prorogation case (Cherry/Miller).

There is no avoiding going over old ground to some extent, but to avoid repeating everything I will refer to previous articles:

Few judicial reviews actually succeed (about 1%, plus some out-of-court settlements) and this has kept the procedure out of the headlines until the recent Gina Miller cases, which are the reason for the sudden interest in reform. There have been troubling decisions in past years though (as other articles outline), and it is just that their political impact was limited.

Even amongst the claims brought by ‘Remainiacs’, it is only the last decision, the prorogation case, which stands out as a wildcard decision, and one wrongly decided in the opinion of much of the legal profession.

The Wednesbury rules are the main focus of comment and are widely cited with approval. These are a good, principled set of rules for judging the propriety of administrative decisions where the authority is granted by statute and that statute intends that the powers be used for a particular purpose. Therefore a power of compulsory purchase granted to enable infrastructure projects should not be used instead to acquire land for property speculation, and a power to impose planning conditions should not be used to get the developer to provide a new, unrelated civic facility (which are both genuine examples).

However, the Wednesbury rules were invented by judges out of necessity for lack of any guidance from Parliament. As a result, the rules can be stretched by a judge who wants a particular result. Leading judgments emphasise that decision-makers make decisions by their own discernment and judges may not substitute their own ideas, but in other judgments a judge has found a perception of a flaw through which he may crawl to strike down a decision he does not like. All this is because Parliament has hitherto failed to do its duty in defining rules for the interpretation of the powers it has granted. It is for the authority granting a power, namely Parliament, to define what power it is granting.

Once the rules can be defined on the original, Wednesbury principles and Dicey’s concept of the rule of law, then mission-creep can be restrained. That still does not affect the Cherry/Miller case though.

A change in the law will not always change the judgments. Statute law is black and white, but it is interpreted by each judge. There are several examples of judges deciding that an Act passed to overturn a judgment has only really restated the existing law so no change is needed: in this you might think of the attempt to liberalise contempt of court after the Thalidomide case – the words “serious harm” are easy to read as “anything more than negligible harm”.

A point well made in the commentaries concerns interference with prerogative powers. This is not about making governments powerful but about the fundamental rule of law, which is a very Conservative concern. The Wednesbury Rules of reasonableness and purpose apply to delegated decisions because delegated authority is always limited authority, but the Royal Prerogative is primary power, not delegated, and so it should not judged by those limits, only by the actual extent of the power. Some judges have trespassed there, and each precedent invites a new trespass. That must be slapped down. It still does not affect the Cherry/Miller case though.

The Prorogation case of Cherry/Miller is unaffected by any Wednesbury reform.  Lady Hale was careful to word her decision not as a Wednesbury case nor as turning on reasonableness or proper purpose or what was said to The Queen, but as turning on a primary constitutional rule. This rule was hitherto completely unknown – or to put it plainly, she made up.

The Prorogation case is in a line of dangerous decisions treading on the common law constitutional understanding. It will be hard to ensure that no Hale-type usurpation takes place in the future, if judges are prepared to invent new rules, but curbing the tendency must help. This particular case would need a discrete rule, that “no common law rule limits Her Majesty’s authority to prorogue or dissolve Parliament nor the length of the prorogation or dissolution”. (No ifs; no buts: add any condition and you bring the whole Wednesbury apparatus into it.)

It is worrying if Parliament now has to think of constitutional fundamentals which some wild judge might think of overturning. It would be unthinkable for a court to invent a new condition to prevent Royal Assent to a Bill, for example, but an invented rule about prorogation that contradicts every textbook written in the last 500 years would have been unthinkable just a few months ago.

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The year begins – 2020

There is no time for our politicians, in any party, to sit back and enjoy the ride. The work began the moment they set foot in Westminster, and the time to the next General Election is ticking away; presumably 1 May 2024.

There are few unavoidable fixtures before the election.

It starts with Brexit Day, finally, on 31 January 2020.  This is then followed by negotiations to reach a free trade agreement, or the essential parts of one, based on the Political Declaration, before 31 December 2020.

The next is the Budget each year;

The local elections, and in particular the London mayoral election on 7 May 2020 (in which the egregious Sadiq Khan is expected to walk home in spite of his having been worse that useless in office).

The Olympic games in Tokyo in 2020: not political, but a national morale-boost, usually.

The creation of the Constitution, Democracy and Rights Commission is likely to happen in 2020.

Then the American Presidential Election on 3 November 2020 – which will determine the course of negotiations for free trade across the ocean, and by indirect influence set a tone for political debate.

First thing though: Brexit. Consummating the event must not be the end of the Brexit campaign as the following months and years will be filled with claim and counterclaim about the effect it is having on the economy, and the ‘Rejoiners’ must not be the only voice heard.  The statistics must therefore be available and up front.

That same spirit of openness and demonstrable achievement must permeate through the years ahead. The new blue north is not a given in four and half years’ time, and the generation too young to know the reality of socialism will continue to fill the electorate from the bottom. A great deal of trust must be built up in spite of a cynical age.

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You’re on your way now, Bill

After three and a half years, it is hard to believe we are finally (almost) there. A joyous Brexmas to us all: the Withdrawal Agreement Bill is through the Commons; and woe betide the Lords should they try to stall it, after they rushed the Surrender Bill through.

When the first Bill was presented during the Zombie Parliament, I wrote a frank if hurried commentary. The one newly passed by the Commons today is almost identical, with some telling changes.

Much fuss has been made about the loss of a clause headed “Protection for workers’ rights”, but the heading of the lost clause is misleading: it had no protection of any rights: all it was going to do was order Ministers to make a statement about it in every new relevant Bill, which was a ridiculous burden with no legal effect. The fuss about it is disingenuous or mistaken. Additional protection in the area is unnecessary: employment law is mostly enshrined in primary legislation with no reference to European rules and so cannot be changed without an Act of Parliament. In those areas which are affected, such as the ‘TUPE’ regulation, it may in fact need technical adjustment to change references to the European Union and European Economic Area, and where limits are defined in euros.

The clause actually protecting foreign workers’ rights remains unchanged.

The headline change concerns extending the Transition Period. The Withdrawal Agreement provides for an agreed extension and the original bill had clauses on that, but as I wrote a few of days ago, the possibility of an extension makes that extension inevitable, and therefore the new Bill forbids any extension. The Europeans’ negotiators may thing they can override that, but it is not Theresa May in charge any more nor her negotiators (if they could be described as that) but Boris Johnson, who is a very different character, as they have seen. Banning extension is necessary.

A second big change is one I begged for before more than once: the clauses that would have tied the Government to clearing every little step of the negotiations with the Commons have gone. Thank goodness: this part would have made impossible what needs to be a swift, nimble-footed negotiation.

It was noted before that there is an extraordinary Henry VIII power at one point, namely power to modify “any provision made by or under an
enactment (including this Act)“. That is only in an administrative Schedule, not the body f the Act, but the wording looks unprincipled. It appears in Schedule 2 which constitutes the Independent Monitoring Authority for the Citizens’ Rights Agreements; once in Paragraph 39(7) and once in Paragraph 40(3), in both cases to allow the transfer of functions from or the abolition of the quango. In that strictly limited context with a strictly limited scope it is not a worry. It is extraordinary though in its wording, for an Act to grant power for itself to be changed, and I hope its appearance here does not become a precedent.

Finally, the Bill still contains a major constitutional error in Clause 39: it (nominally) says: “It is recognised that the Parliament of the United Kingdom is sovereign.” No it is not. If “Parliament” is here an abbreviation for “the Queen and Parliament together” then it is correct. If “sovereign” is a loose term, then they can get away with it, but Parliament, meaning the two Houses, is not sovereign and never has been. One hopes that a throwaway line in a narrow, functional Act will not be taken as changing a most fundamental part of the Constitution, but with judges these days you cannot be sure.

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Hobbes manifesto: taxes and publique charity

Equall Taxes

To Equall Justice, appertaineth also the Equall imposition of Taxes; the equality whereof dependeth not on the Equality of riches, but on the Equality of the debt, that every man oweth to the Common-wealth for his defence. It is not enough, for a man to labour for the maintenance of his life; but also to fight, (if need be,) for the securing of his labour. They must either do as the Jewes did after their return from captivity, in re-edifying the Temple, build with one hand, and hold the Sword in the other; or else they must hire others to fight for them. For the Impositions that are layd on the People by the Soveraign Power, are nothing else but the Wages, due to them that hold the publique Sword, to defend private men in the exercise of severall Trades, and Callings.

Seeing then the benefit that every one receiveth thereby, is the enjoyment of life, which is equally dear to poor, and rich; the debt which a poor man oweth them that defend his life, is the same which a rich man oweth for the defence of his; saving that the rich, who have the service of the poor, may be debtors not onely for their own persons, but for many more.

Which considered, the Equality of Imposition, consisteth rather in the Equality of that which is consumed, than of the riches of the persons that consume the same. For what reason is there, that he which laboureth much, and sparing the fruits of his labour, consumeth little, should be more charged, then he that living idlely, getteth little, and spendeth all he gets; seeing the one hath no more protection from the Common-wealth, then the other? But when the Impositions, are layd upon those things which men consume, every man payeth Equally for what he useth: Nor is the Common-wealth defrauded, by the luxurious waste of private men.

Publique Charity

And whereas many men, by accident unevitable, become unable to maintain themselves by their labour; they ought not to be left to the Charity of private persons; but to be provided for, (as far-forth as the necessities of Nature require,) by the Lawes of the Common-wealth. For as it is Uncharitablenesse in any man, to neglect the impotent; so it is in the Soveraign of a Common-wealth, to expose them to the hazard of such uncertain Charity.

Prevention Of Idlenesse

But for such as have strong bodies, the case is otherwise: they are to be forced to work; and to avoyd the excuse of not finding employment, there ought to be such Lawes, as may encourage all manner of Arts; as Navigation, Agriculture, Fishing, and all manner of Manifacture that requires labour.

The multitude of poor, and yet strong people still encreasing, they are to be transplanted into Countries not sufficiently inhabited: where neverthelesse, they are not to exterminate those they find there; but constrain them to inhabit closer together, and not range a great deal of ground, to snatch what they find; but to court each little Plot with art and labour, to give them their sustenance in due season. And when all the world is overchargd with Inhabitants, then the last remedy of all is Warre; which provideth for every man, by Victory, or Death.

From ‘Leviathan’, Chapter XXX

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The work begins: Get Brexit Done

I’m still celebrating, but the work is beginning at once. Just as after the office party the ’phone will ring, so now the new, giddy MPs must get to work at speed, to get done all those things that should have been done in the last three and a half years, and more.

First of all: get Brexit done finally.  It is almost a year late.

A Withdrawal Agreement Bill will be introduced on Friday, and a programme motion to push it through the Commons before Christmas – or alternatively a Section 13 motion. One problem facing the renewed Government is that the Surrender Act is still in force and obliges the Government to go for the Malthouse Compromise and nothing else:  that must be cleared away and all the tripwires the awkward squad imposed during the Zombie Parliament, and so a Bill is needed.

We had a commentary on the Withdrawal Agreement Bill on the day it was published.  If the same Bill is introduced, the same issues are there; it is unnecessarily complicated because it was done in a hurry and appears to duplicate powers which are already in the existing European Union Withdrawal Act.  It also has provisions with a burdensome procedure for the Government to have to keep referring back to the Commons on the course of the negotiations for a new trade deal. Maybe that was a way to win some wavering support in the hung House of Commons. The voice of the Commons should be heard in the negotiations as they will be required to pass an Act to implement the resulting treaty, and they will want to voice priorities in terms of the extent to which Britain will be bound by agreements, and this will include important areas such as intellectual property, state aid, level-playing-field tendering and co-operation in VAT and data-sharing. However too much structure can make the negotiation slow and encumbered, and since it has to be concluded by December 2020, that is worrying.

In one element though the government can properly be hobbled in its negotiation, and that is where there is the possibility of extending the Transition Period (the ‘vassalage period’ as it has been called). The Withdrawal Agreement provides for an agreed extension, but it would be unwelcome and against the Manifesto pledge. It is hinted that the Bill to be brought on Friday will bar the government from actually extending. That is wise: it was the possibility of extension of the Article 50 period which made that extension inevitable, and the possibility of extending the vassalage will be very tempting to Brussels as they prevaricate in their negotiations over the course of 2020.

Never forget in all of this, that although there is a large Conservative majority and the will to get this through, and though all the blue rebels have been ousted and swept into obscurity, the Labour benches still contain the likes of Hilary Benn, prime mover of the Surrender Act, and Keir Starmer, co-author of Section 13 and one of those who gave aid and comfort to the enemy in Brussels. They may be overpowered, but they will not be silent.

This morning Michel Barnier made a useful observation: he said that a complete negotiation of an international trade treaty would take far longer than twelve months, but that it should be possible to do enough in that time to continue the trading relationship. That is a constructive way ahead.

With a common-sense approach and goodwill it should be possible to do the whole treaty in twelve months, but common sense and goodwill and not among the EU’s known qualities, not alacrity come to that. Theresa May’s team were content to sit back and wait for Brussels to propose things, with the result we saw. This time it will need British will to push the new trade deal at every stage, and an open line to Eire – the one European state which does display common sense on occasion. Then if the treaty text can artfully keep to areas within the European Union’s ‘exclusive competence’ then the treaty need only pass through the European Union’s own procedures and not be tripped up by a troublesome member state; the EU-Canada CETA strayed beyond and was felled by the Walloon regional parliament. If for a full treaty it is impossible to keep to the areas of exclusive competence, Monsieur Barnier’s “enough” treaty could, with detail to follow.

If it is likely then that the trade treaty will be a multi-stage process then the Government must be free to negotiate it in stages and sign up in stages, and the terms of any Bill before the Commons must not inadvertently hamper that.

I may be getting ahead of things though: the first thing is to get Parliament to grant whatever authority the Government needs to sign the deal, and (whether at the same time or following on its heels) to repeal the Surrender Act and the unfortunate Section 13.

Then by December we may see a signature on a new treaty. Not in Rome, as it is too redolent of the original treaty which got us into this mess in the first place, and of the Europeans’ imperial ambitions: may I suggest Wittenberg?

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