Editorial Committee of the Cambridge Law Journal

Reconciling Constitutional Rights and Constitutional OrthodoxyAuthor(s): Mark ElliottSource: The Cambridge Law Journal, Vol. 56, No. 3 (Nov., 1997), pp. 474-477Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4508361 .

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474 The Cambridge Law Journal [1997]

creation of a duty. The case could have been argued in terms of

whether a duty owed to Mr. Barry (in the eyes of the majority in the

Court of Appeal and the minority of the House of Lords) would be

breached, where inaction was a result of lack of resources.

Cases in private law where plaintiffs have alleged a breach of duty

by omission (see, for example, the judgment of Lord Nicholls in Stovin

v. Wise [1996] A.C. 923) and indeed cases dealing with the defence of

impossibility (see, for example, United Dairies (London) Ltd. v.

Beckenham Corporation [1963] 1 Q.B. 434) might suggest that there is

an argument that where failure to discharge a duty was due to lack of

resources there is no breach of duty. In the light of exp. Barry it seems

that such an argument would not succeed. Once a duty has arisen, Lord Clyde states categorically that a shortage of resources will not

excuse a failure in the performance ofthe duty. In considering whether

there is a breach of duty, it seems that at least in the context of public law a lack of resources is not relevant.

The House of Lords has therefore laid down a hard line for

authorities suffering funding cuts. The right of the courts to police the

question of who must receive services, on Wednesbury grounds, is

reaffirmed. No lack of resources will justify reducing the extent of a

duty any further. An irreducible minimum level of entitlement will be

enforced. Within whatever the scope ofa statutory duty is held to be, no lack of resources will ever justify a failure to discharge the duty. Thus there is a minimum level of provision which simply must be

made in respect of any duty, but in making provision above that level,

public bodies are entitled, within Wednesbury bounds, to set their own

budgets in accordance with priorities as they see them. This, it is

submitted, is an eminently reasonable compromise between the

interests of cash-starved public bodies and those who rely on them.

Stephen Hocking

474 The Cambridge Law Journal [1997]

creation of a duty. The case could have been argued in terms of

whether a duty owed to Mr. Barry (in the eyes of the majority in the

Court of Appeal and the minority of the House of Lords) would be

breached, where inaction was a result of lack of resources.

Cases in private law where plaintiffs have alleged a breach of duty

by omission (see, for example, the judgment of Lord Nicholls in Stovin

v. Wise [1996] A.C. 923) and indeed cases dealing with the defence of

impossibility (see, for example, United Dairies (London) Ltd. v.

Beckenham Corporation [1963] 1 Q.B. 434) might suggest that there is

an argument that where failure to discharge a duty was due to lack of

resources there is no breach of duty. In the light of exp. Barry it seems

that such an argument would not succeed. Once a duty has arisen, Lord Clyde states categorically that a shortage of resources will not

excuse a failure in the performance ofthe duty. In considering whether

there is a breach of duty, it seems that at least in the context of public law a lack of resources is not relevant.

The House of Lords has therefore laid down a hard line for

authorities suffering funding cuts. The right of the courts to police the

question of who must receive services, on Wednesbury grounds, is

reaffirmed. No lack of resources will justify reducing the extent of a

duty any further. An irreducible minimum level of entitlement will be

enforced. Within whatever the scope ofa statutory duty is held to be, no lack of resources will ever justify a failure to discharge the duty. Thus there is a minimum level of provision which simply must be

made in respect of any duty, but in making provision above that level,

public bodies are entitled, within Wednesbury bounds, to set their own

budgets in accordance with priorities as they see them. This, it is

submitted, is an eminently reasonable compromise between the

interests of cash-starved public bodies and those who rely on them.

Stephen Hocking

RECONCILING CONSTITUTIONAL RIGHTS AND CONSTITUTIONAL

ORTHODOXY

Ostensibly, R. v. Lord Chancellor, exp. Witham [1997] 2 All E.R. 779

is simply an example of the exercise of the courts' well-established

jurisdiction to review delegated legislation. However, it also contains

a significant reassertion of two fundamental and related constitutional

doctrines, viz. the legislative supremacy of Parliament and the ultra

vires principle. The Supreme Court Fees (Amendment) Order 1996, S.l. 1996/3191,

article 3, repealed a provision in the Supreme Court Fees Order 1980, S.l. 1980/821, which relieved persons receiving income support ofthe

RECONCILING CONSTITUTIONAL RIGHTS AND CONSTITUTIONAL

ORTHODOXY

Ostensibly, R. v. Lord Chancellor, exp. Witham [1997] 2 All E.R. 779

is simply an example of the exercise of the courts' well-established

jurisdiction to review delegated legislation. However, it also contains

a significant reassertion of two fundamental and related constitutional

doctrines, viz. the legislative supremacy of Parliament and the ultra

vires principle. The Supreme Court Fees (Amendment) Order 1996, S.l. 1996/3191,

article 3, repealed a provision in the Supreme Court Fees Order 1980, S.l. 1980/821, which relieved persons receiving income support ofthe

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Case and Comment

obligation to pay court fees. This precluded the applicant-a recipient of income support-from instituting proceedings for malicious false- hood and libel because, in light of his financial circumstances, the cost

proved prohibitive. The applicant contended that the amendment was invalid, because its putative legal basis (Supreme Court Act 1980, s. 130(1)) did not furnish the Lord Chancellor with the power to make

regulations which significantly impeded individuals' access to the courts.

On its face, the Lord Chancellor's power, under section 130(1), to

"prescribe the fees to be taken in the Supreme Court" is unfettered. Nevertheless, the Divisional Court granted a declaration that article 3 of the 1996 Order was unlawful. Given the courts' willingness to

develop and impose unwritten limits on statutory power, this outcome is perhaps unsurprising. Rather, in light of the emergence of what Sir

Stephen Sedley and others have referred to as an ethos of "judicial supremacism", the noteworthy feature of the decision is the unques- tionably orthodox nature of the analysis adopted by their Lordships.

The applicant urged that the amendment effected by article 3 was unlawful because it interfered with his "constitutional right" of

unimpeded access to the courts. The use of such terminology led Laws J. (giving the leading judgment, with which Rose L.J. concurred) to distinguish two alternative potential modes of analysis. The language of "rights" suggested a non-derogable entitlement of access to justice which no legislation could validly attenuate. However, the invalidity of the amending provision could instead be established by showing that section 130(1) of the Act of 1981 contained an implied prohibition on the prescription of fees which would inhibit access to the courts. Thus the court was presented with a clear choice between a rights- based approach and the more traditional methodology of statutory construction within the ultra vires model.

In light of certain views which he had expressed extra-judicially, Laws J. might have been expected to endorse the former approach. However, in ex p. Witham, his Lordship asserted that because the courts accept the sovereignty of Parliament, English law lacks a "hierarchy of rights". Consequently, constitutional rights could exist merely to the extent that they could be abrogated only by specific provision in primary legislation, or by delegated legislation "whose vires in main legislation specifically confers the power to abrogate". Laws J. concluded that because access to the courts amounted to a constitutional right, the delegated legislation in question was invalid because the empowering provision created no specific competence to interfere with that right.

Thus, the case was ultimately decided by invoking the familiar ultra vires principle, rather than by reference to non-derogable rights:

C.L.J. 475

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The Cambridge Law Journal

Parliament could have rendered the Lord Chancellor competent to make regulations which inhibited access to the courts but, on a proper construction of the empowering provision, was held not to have done so.

Such a construction-based approach is somewhat out of step with the extra-judicial pronouncements of some senior members of the judiciary: Lord Woolf [1995] P.L. 57, 68, Sir Stephen Sedley [1995] P.L. 386, 389 and Sir John Laws [1995] P.L. 72, 87 have all argued that Parliament lacks the power to legislate inconsistently with the rule of law, with the consequence that legislation (both primary and secondary) is vulnerable to direct challenge on the ground of its incompatibility with such higher-order law, rather than by the more tortuous route prescribed by the ultra vires doctrine (which does not, in any event, accommodate challenges to primary legislation).

In ex p. Witham, the court was presented with a clear opportunity to deal with the issues in terms consistent with this extra-curial reasoning, yet it declined to do so. The significance of this should not be underestimated: the judiciary has unequivocally signalled its willingness to protect fundamental rights, not by abandoning constitutional orthodoxy, but rather in a manner which is compatible with the supremacy of Parliament. Thus, as Lord Steyn [1997] P.L. 84, 85 has recently argued, even when fundamental rights are at stake, the grounds of review which are applied to the exercise of powers granted by primary legislation are to be found in the implied terms of the empowering provisions themselves, not in independent and superior rules of law which confine Parliament's legislative competence.

The greater readiness of the judiciary to imply limitations into competences created by statute when constitutional rights are involved indicates that parliamentary supremacy is not necessarily incompatible with effective judicial protection of citizens. The courts are not forced to choose between protecting individuals and observing the demands of the constitution: in all but the most extreme (and least probable) cases, these two objectives are never likely to conflict.

The practical significance of the distinction between construction- and rights-based approaches will become much more apparent once the European Convention on Human Rights is incorporated into English law. During recent decades, the judiciary has carefully fashioned a system of administrative law while observing the constitu- tional limits imposed by parliamentary supremacy. Depending on the method of incorporation adopted, the courts may well be presented with the most significant temptation yet to ignore the constraints of parliamentary sovereignty and to translate into practice the judicial supremacist rhetoric of the primacy of the rule of law.

The extra-curial contributions cited above suggest that the desir-

476 [1997]

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Case and Comment Case and Comment

ability of protecting citizens by embracing non-derogable rights is thought, by the judiciary, to outweigh the need to observe constitu- tional orthodoxy. However, the decision in ex p. Witham discloses judicial recognition that constitutional rights can be vindicated without affronting the constitutional order, by applying principles of con- struction. Thus it provides some hope that judicial attachment to such construction-based methodology is sufficiently strong to survive the legal and political changes which incorporation of the Convention will effect. In this manner, the laudable objective of protecting citizens' constitutional rights can continue to be reconciled with the dictates of constitutional orthodoxy.

MARK ELLIOTT

FIXING THE TARIFF, AND THE LENGTH OF HER MAJESTY'S PLEASURE

THE unfairness and uncertainties caused when Parliament fails to lay down clear sentencing procedures have been well illustrated in two cases recently heard in the House of Lords. In the first, R. v. Secretary of Statefor the Home Department, ex p. Venables [1997] 3 W.L.R. 23, two boys who had been convicted of the murder of a two-year-old were sentenced by the trial judge to the mandatory sentence of detention during Her Majesty's pleasure, under the Children and Young Persons Act 1933, s. 53(1). The normal procedure had been followed: the judge submitted a report to the Home Secretary that the "tariff period" of their sentence should be eight years. The Lord Chief Justice then advised the Home Secretary that this period should be increased to 10 years. The boys applied for judicial review to quash the Home Secretary's decision to increase the tariff to 15 years and challenged the policy on which it was based.

In the other case, Pierson v. Secretary of State for the Home Department [1997] 3 W.L.R. 492, the appellant, then aged 21, had been convicted of the murder of his parents in 1985. He too received a mandatory sentence: in this case, life imprisonment. Until 1993, the practice of the Home Secretary in mandatory life sentence cases had been to fix a "penal element" in secret and to notify the prisoner simply of the date when he could first expect his case to be heard by the Parole Board. Following the decision of the House in Doody v. Secretary of State for the Home Department [1994] 1 A.C. 531 (in which Pierson had been one of the four applicants), where the House had held that the Home Secretary must give a mandatory life prisoner the opportunity to make written representations as to the penal element in his sentence, the Home Secretary had announced, inter alia, that the tariff period set at the beginning of a mandatory life sentence

ability of protecting citizens by embracing non-derogable rights is thought, by the judiciary, to outweigh the need to observe constitu- tional orthodoxy. However, the decision in ex p. Witham discloses judicial recognition that constitutional rights can be vindicated without affronting the constitutional order, by applying principles of con- struction. Thus it provides some hope that judicial attachment to such construction-based methodology is sufficiently strong to survive the legal and political changes which incorporation of the Convention will effect. In this manner, the laudable objective of protecting citizens' constitutional rights can continue to be reconciled with the dictates of constitutional orthodoxy.

MARK ELLIOTT

FIXING THE TARIFF, AND THE LENGTH OF HER MAJESTY'S PLEASURE

THE unfairness and uncertainties caused when Parliament fails to lay down clear sentencing procedures have been well illustrated in two cases recently heard in the House of Lords. In the first, R. v. Secretary of Statefor the Home Department, ex p. Venables [1997] 3 W.L.R. 23, two boys who had been convicted of the murder of a two-year-old were sentenced by the trial judge to the mandatory sentence of detention during Her Majesty's pleasure, under the Children and Young Persons Act 1933, s. 53(1). The normal procedure had been followed: the judge submitted a report to the Home Secretary that the "tariff period" of their sentence should be eight years. The Lord Chief Justice then advised the Home Secretary that this period should be increased to 10 years. The boys applied for judicial review to quash the Home Secretary's decision to increase the tariff to 15 years and challenged the policy on which it was based.

In the other case, Pierson v. Secretary of State for the Home Department [1997] 3 W.L.R. 492, the appellant, then aged 21, had been convicted of the murder of his parents in 1985. He too received a mandatory sentence: in this case, life imprisonment. Until 1993, the practice of the Home Secretary in mandatory life sentence cases had been to fix a "penal element" in secret and to notify the prisoner simply of the date when he could first expect his case to be heard by the Parole Board. Following the decision of the House in Doody v. Secretary of State for the Home Department [1994] 1 A.C. 531 (in which Pierson had been one of the four applicants), where the House had held that the Home Secretary must give a mandatory life prisoner the opportunity to make written representations as to the penal element in his sentence, the Home Secretary had announced, inter alia, that the tariff period set at the beginning of a mandatory life sentence

C.L.J. C.L.J. 477 477

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