Procedural Innovation and the Surreptitious Creation of Judicial Supremacy in the United Kingdom
| Published date | 01 September 2019 |
| Author | David Campbell,James Allan |
| DOI | http://doi.org/10.1111/jols.12167 |
| Date | 01 September 2019 |
JOURNAL OF LAW AND SOCIETY
VOLUME 46, NUMBER 3, SEPTEMBER 2019
ISSN: 0263-323X, pp. 347±66
Procedural Innovation and the Surreptitious Creation of
Judicial Supremacy in the United Kingdom
David Campbell* and James Allan**
In Re an Application by the Northern Ireland Human Rights
Commission for Judicial Review, the Supreme Court made
unfavourable comments about Northern Irish abortion legislation in a
way which showed complete disregard for elements of civil procedure
which are a foundation of proper adjudication within the context of
respect for democracy. This was but the latest of a number of cases in
which the senior judiciary has made unaccountable procedural
innovations furthering judicial supremacy in defiance of the sovereignty
of Parliament. In addition to Re Northern Ireland Human Rights
Commission, two other of these cases, Simmons v. Castle and R (Miller
and another) v. The Secretary of State for Exiting the European Union,
will be discussed. These cases reveal an effort to create judicial
supremacy by means which we are obliged to call surreptitious.
INTRODUCTION
The immediate importance of Re an Application by the Northern Ireland
Human Rights Commission for Judicial Review
1
of course lies in its implica-
tions for the law of abortion in Northern Ireland, that law having been
347
*Lancaster University Law School, Lancaster University, Lancaster LA1
4YN, England
d.campbell1@lancaster.ac.uk
** TC Beirne School of Law, University of Queensland, St Lucia, QLD 4072,
Australia
j.allan@law.uq.edu.au
This article was largely written whilst Campbell held a Visiting Professorship in the
Auckland University of Technology Law School, New Zealand and Allan held a Visiting
Professorship in the Dickson Poon School of Law, King's College, London, both of
which are thanked for their hospitality. We are grateful to the journal's referees for their
comments and to David Capper for his comments and other assistance.
1Re an Application by the Northern Ireland Human Rights Commission for Judicial
Review [2018] UKSC 27; [2019] All E.R. 173.
ß2019 The Author. Journal of Law and Society ß2019 Cardiff University Law School
described in the Supreme Court (UKSC) as incompatible with the Human
Rights Act 1998 (HRA). We have used the word `described' because, for
reasons which will emerge, this description was put forward as a result of a
procedural innovation which was so extraordinary that it would make it quite
wrong to say that the Northern Irish law was `found' to be incompatible. Re
Northern Ireland Human Rights Commission was the latest of a number of
such innovations which, we submit, are the means by which judicial
supremacy is now being surreptitiously created in the United Kingdom.
Though Re Northern Ireland Human Rights Commission is a paradigm
case of a political character, analysis of it must begin by stating that much
recent criticism of the United Kingdom judiciary for undermining the
sovereignty of Parliament in order to take political decisions has been
framed very poorly or even outright wrongly. The barrage of criticism which
the House of Lords received for what turned out to be the protracted delay of
the deportation of Abu Qatada failed to appreciate that, in the initial
litigation at least, the Lords acted in a procedurally impeccable manner.
2
The
primary legislation under which the deportation was to take place was
declared incompatible (and secondary legislation struck down). But this was
merely the exercise of powers granted to the senior courts by Parliament
under s. 4 of the HRA and it cannot be procedurally criticized as an assertion
of judicial supremacy, though it is open to a more sophisticated criticism that
the UKSC failed to give nearly sufficient weight to the intention of Parlia-
ment expressed in the legislation found to be incompatible.
3
The principal
significance of this is that s. 4's expansion of judicial competence benefits
from input legitimacy;
4
it rests on an Act of Parliament, one that, of course,
was the occasion of very extensive debate, and much of the failure
adequately to respond to the consequences of s. 4, or even to repeal it, are
also acts (including omissions) of Parliament.
The situation is significantly different regarding HRA s. 3.
5
The operation
of s. 3 has been authoritatively described as allowing statutory interpretation
to be turned into the `remoulding' of statute in defiance of the intention of
348
2Av. Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 A.C. 68.
3 D. Campbell, `The Threat of Terror and the Plausibility of Positivism' [2009] Public
Law 501. The simultaneously extremely expensive and ineffective changes to
deportation law, procedure, and practice which have followed from this decision
exemplify what the authors believe is the futility, and worse, of attempting to create a
`dialogue' between the courts and government (and Parliament): id., pp. 510±11. See,
also, D. Campbell, `The Threat of Terrorism: David Campbell Responds to Clive
Walker' [2010] Public Law 459.
4 The argument can indeed cogently be made that Parliament's intention requires a
greater use of s. 4: S.W. Stark, `Facing Facts: Judicial Approaches to Section 4 of the
5 J. Allan, `Statutory Bills of Rights: You Read Words In, You Read Words Out, You
Take Parliament's Clear Intention and You Shake It All About ± Doin' the Sankey
Hanky Panky' in The Legal Protection of Human Rights: Sceptical Essays, eds. T.
Campbell et al. (2011) 108.
ß2019 The Author. Journal of Law and Society ß2019 Cardiff University Law School
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