The importance of lawyers in a democratic society
The full text of the lecture, one of the Jean Clark Memorial Lectures series, of which an extract appears in this month's magazine
The arrangements for the administration of justice in the United Kingdom are continually evolving. Such a statement is hardly surprising. Those arrangements are affected by administrative and legislative change and the participation of those involved in the administration of justice is reflective of societal change. Some of those factors inevitably impact directly or indirectly on the role of the judiciary.
In almost every decade it is possible to discern some aspect of the evolution process influencing the work of the judiciary and its outcome on the lives of ordinary citizens. During the 1970s there was extensive litigation on the development and determination of the principles of distributive justice in the field of common law damages. In the 1980s attention turned to administrative law and the proper role of the courts in the supervision of administrative action. That period was characterised by the booklet provided to civil servants entitled The judge over your shoulder.
In our jurisdiction in the 1990s the focus was on employment and equality law. For all sorts of reasons which I need not rehearse tonight, my jurisdiction has a substantial history of statutory protections in relation to religious and political discrimination as well as protections in relation to race, sex and sexual orientation discrimination. Those issues continue occasionally to dominate our legal landscape and some of you may be familiar with the recent decision given by my court in what has been described as the gay cake case. The complaint related to the failure to provide a commercial service, a cake with the message saying support gay marriage iced on top, by a bakery whose owners believed gay marriage to be sinful. The underlying issue was the mechanism for ensuring that gay people in Northern Ireland were not discriminated against in the provision of commercial services while at the same time ensuring that people of faith continued to take their place within the commercial community. We rejected an appeal against a finding of discrimination on the grounds of sexual orientation by the bakery. I do not intend to say anything further about the case as it seems likely that it will be reconsidered by the Supreme Court.
Tonight I want to look at the way in which this evolution has developed in the early years of this millennium. My own view is that this is not so much evolution as revolution. I have previously spoken about this issue in a lecture I gave in Dublin in 2013 and a further lecture in Galway in 2015. Both lectures were concerned primarily with the need for the three arms of government, the executive, the legislature and the judiciary, to strike a balance which recognised the new distribution of functions between them. One of the features of such an exercise, of course, is that because the relationship is continually evolving the point of equilibrium is constantly changing.
There is, therefore, no steady state, and the uncertainties and misunderstandings that can arise from a failure to understand where the point of equilibrium lies occasionally give rise to undue excitement. Regrettably the outright hostility demonstrated by certain national newspapers to the members of the Divisional Court who heard the recent Brexit case is a depressing example of what can happen. I do not intend to say anything further about that case as there are certain circumstances in which the matter might come before my appeal court.
In this talk, however, I want to approach the issue of the revolution in the role of the judiciary in this millennium from a different perspective and to identify some of the factors which have contributed to that change, the reasons why those factors have done so, the impact of that change and what it tells us about the future direction of travel. Perhaps the most important legislative and constitutional change which has affected the lives of the people of Scotland and Northern Ireland is the devolution settlement for which legislation was enacted in 1998. In Northern Ireland it was 2010 before justice became devolved. Our experience is that devolution has undoubtedly led to a difference in the level of political scrutiny of the justice system, but does not seem to me to have resulted in any significant shift in the balance of powers between the judiciary and the other arms of government. While I recognise its importance, therefore, I do not intend to deal with it as a factor in this discussion.
Lord Chancellor: a reduced influence
In any book published on constitutional law prior to 2003 there was a detailed analysis of the role of the Lord Chancellor. The office was certainly established by 1066 and lasted almost 1,000 years before the Labour Government attempted to abolish it in 2003. The role of the Lord Chancellor was unique. He, and it was always a he until July 2016, was until 2005 the presiding officer in the House of Lords, a senior cabinet minister and the presiding judge in the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council. As a result of the Constitutional Reform Act 2005 the position of Lord Chancellor was retained, but the functions formerly associated with the post were significantly diminished and the post-holder became the Secretary of State for Justice.
Many judges were concerned that the attempted abolition of the post and the removal of the Lord Chancellor from the judicial sphere were likely to have a detrimental effect on the protection of an independent judiciary from political attack. When the officeholder had to act as a senior judge and was in regular contact with senior judges in relation to appointment and disciplinary functions, the judiciary believed that it had a voice in Government to protect and represent its interests. There is no doubt that there has been a dramatic change on that front. The last three Lord Chancellors were not legally qualified and therefore did not have a pre-existing relationship with any of the professions or personal experience of the conduct of judicial business.
I consider, however, that there is another aspect to this relationship which occasionally is overlooked. Just as the judges believed that they had a protector and person of influence around the Cabinet table and in the legislature, there is every reason to believe that the Lord Chancellor acted as a limiting or moderating influence on so-called judicial activism, particularly in the highest courts where he presided as of right. His regular engagement with senior judges on all aspects of court administration would certainly have provided adequate opportunity to alert colleagues to concerns about the impact of upcoming appeals. I am not in any way suggesting any improper behaviour by any of the holders of the office, but the effect of the removal of the Lord Chancellor in 2005 from the judiciary and indeed from the House of Lords was to take away any subliminal brake he may have exercised upon the development of the substantive law by the judiciary.
It was considerations of this kind that persuaded many that the creation of a new Supreme Court was required if the judiciary was to be truly independent and seen to be so. The walk across Parliament Square in 2009 to the Middlesex Guildhall, where the Supreme Court now sits, was not just a matter of form but was almost an invitation to the members of that court to consider substantively how they should reassess their relationship with the other arms of government in this new environment. I do not intend to burden this talk with examples of cases in which they have done so, but there is no doubt that there has been a dialogue with the executive on various issues. That has included the exercise of the royal prerogative, which no doubt will feature again next month [with the hearing of the Miller article 50 appeal].
Proportionality in human rights law
The next factor I want to look at is the passing of the Human Rights Act 1998. Prior to the passing of that Act the United Kingdom's ratification of the European Convention on Human Rights gave, from 1966, the right of individual petition to the European Court of Human Rights. The Convention, however, did not give rise to justiciable rights in domestic law and in truth was little used as an aid to interpretation in relation to domestic rights. The passing of the Act required the courts of the United Kingdom to take into account the jurisprudence of the ECHR when determining any question which arose in connection with a Convention right. The effect of this provision was to introduce to the domestic courts a substantial body of persuasive case law on the interpretation of the matters covered by the Act.
I consider that there were two important consequences flowing from s 2 of the 1998 Act. The first was to introduce the concept of proportionality into domestic law. In Bank Mellat v HM Treasury (No 2)  UKSC 39 at para 71, Lord Reed stated that an assessment of proportionality inevitably involves a value judgment at the stage at which a balance has to be struck between the importance of the objective pursued and the value of the right intruded upon. The principle does not however entitle the courts simply to substitute their own assessment for that of the decision-maker.
He identified a four stage analysis in which the decision-maker must engage in the determination of whether the measure is disproportionate: “(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter” (para 74).
The process of weighing individual rights against state interests which is implicit in the carrying out of the proportionality test was, of course, a novel concept for common lawyers, although perhaps not quite such new territory for Scottish lawyers. It is in my view interesting that it was only in 2013 that the Supreme Court was able to give clear guidance on how the test should be applied in national law, although there had been some assistance from earlier observations of Lord Clyde. The delay suggests that the novelty of the concept required some time to bed in, and that novelty lay in the fact that the court was now engaged in a balancing exercise which was directly relevant to the merits of policy decisions rather than the process by which they were arrived at. Although the court could not simply substitute its own assessment for that of the decision-maker, it was required to review the balance struck by the decision-maker, and depending upon the degree of discretionary judgment to which the decision-maker was entitled, the court may have been obliged to overturn that balance. This was indeed new territory.
The second consequence flowing from s 2 of the Human Rights Act 1998 was the nature of the law with which the court now had to grapple. The obligation to take into account the jurisprudence of the ECHR brought the domestic courts into contact with those legal concepts and standards which informed the content of the rights protected by the Convention. There were a range of Conventions and Covenants recognised by the international jurisprudence as being highly relevant to the content of such rights. Among the most important of these were the United Nations Convention on the Rights of the Child, the International Covenant on Civil and Political Rights and the Committee for the Elimination of Discrimination Against Women. All of these bodies have produced voluminous reports and guidance which are designed to influence the human rights standards set by other international bodies. Because of its developed systems for enforcement, the approval by the European Court of Human Rights of the standards which they promoted provided a very significant method of validation and enforcement.
Of course, this was very different territory for United Kingdom lawyers. The international instruments, often promulgated through the United Nations, were generally treaties and obligations which the United Kingdom had accepted on the international plane but which on their own gave no justiciable rights in domestic law. Now such international obligations were at the heart of determining the appropriate content of rights and the manner in which any balancing exercise between the individual and the state should be conducted. That, of course, called into question what had been the sharp distinction between treaty rights which were not justiciable in the United Kingdom and domestic law. As a result of the influence of the ECHR it is now common in domestic cases involving the rights of children to see the provisions of the United Nations Convention on the Rights of the Child featuring prominently in the determination of children's rights. Indeed so common is this approach that my esteemed predecessor as Lord Chief Justice of Northern Ireland, Lord Kerr, recently concluded in his opinion in the Supreme Court in a benefits cap case, SG (para 257), that article 3(1) of the UNCRC should be directly enforceable in domestic law.
The last factor to which I want to draw attention is the impact of the European Court of Justice. The influence of that court has increased as the competence of areas subject to EU law has expanded. It has required the courts to recognise that Acts of Parliament on rare occasions have to give way to EU law. The Charter of Fundamental Rights introduced by the Lisbon Treaty in December 2009 has in some cases replicated and in others expanded the protections and guarantees of human rights in connection with Community provisions implementing European law. Unlike the statutory regime of the Human Rights Act 1998, these provisions could be directly effective despite some incompatible piece of domestic legislation. The continuing influence of that court is uncertain.
A new independence
In my view these four factors have contributed significantly to the changed role which the courts now have in our democracy. The removal of the Lord Chancellor from the judicial cohort and the taking away of his responsibilities for appointment and discipline removed what some saw as a potentially limiting factor on the development of a rights-based jurisprudence in domestic law. The establishment of the Supreme Court in 2009 was not a matter of form. While the Appellate Committee of the House of Lords continued without the presence of the Lord Chancellor after 2005, there was a cautious approach to this acknowledgment of independence. Since the Supreme Court was established in 2009, many commentators have suggested that the pace of participation by senior judges in lectures and seminars has increased significantly and that this has been accompanied by a recognition of the extent of the proper role of the courts in our democratic structures.
The term “judicial activism” has been suggested to describe this, but in my view it is not appropriate. Much of what has occurred has been the inevitable consequence of the statutory focus on a rights-based jurisprudence. It was in a sense the inevitable consequence of the introduction of the jurisprudence of the two international European courts and the drawing in through those courts of international soft law. All of this has driven the Supreme Court to scrutinise carefully any suggested limit to its competence. There continues to be considerable debate about the extent of that competence, but it is not the purpose of this talk to address that issue.
Some Northern Ireland examples
Rather, what I want to do is to look at the impact of the changes promoted by these factors within my own jurisdiction by highlighting a number of recent cases. The first of these is the case of JR65, a judicial review of the Department of Health, Social Services & Public Safety in respect of the maintenance by it of a lifetime ban on males who have had sex with other males donating blood. There was a challenge to the decision of the Minister of Health not to alter the ban so as to adopt a position consonant with that which applied throughout the rest of the UK. In Scotland, England and Wales there was a one year deferral period before a blood donation might be made. The matters that came before the Court of Appeal included whether the stance of the minister and department was irrational and founded on apparent bias, and whether the maintenance of a permanent deferral of blood donation for sexually active gay men was contrary to the EU principle of proportionality and the protection of fundamental rights.
We found no basis for concluding that the decision was based on bias. It was agreed that maintenance of a permanent deferral plainly implemented EU law and the Charter of Fundamental Rights clearly applied. Article 21(1) of the Charter prohibits discrimination based on sexual orientation. Article 52 of the Charter, dealing with proportionality, provides that limitations on such rights can only be made if they are necessary to genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. I concluded that the minister had made a final decision which failed the proportionality test, as the blanket exclusion of sexually active gay men was excessive having regard to the overwhelming evidence that a one year deferral period was effective. Although mine was a dissenting judgment, the other judges concluding that no final decision had been made, the Minister of Health brought our position into line with the rest of the UK shortly thereafter and no appeal to the Supreme Court was necessary.
Moving from Charter rights to Convention rights, we have considered the ability of unmarried same sex couples to adopt a child in Northern Ireland. The Northern Ireland Human Rights Commission challenged the criteria to be fulfilled by a person seeking the making of an adoption order in respect of a child under the Adoption (Northern Ireland) Order 1987. C, a lesbian, wished to adopt jointly with her partner and wished to enter into a civil partnership unless it would prejudice her ability to apply for an adoption. She was a person intimately affected by the purported ambit of articles 14 and 15 of the 1987 Order – provisions which appeared to prevent her adopting any child if she entered a civil partnership.
She challenged the legislation as infringing her article 8 (right to respect for private and family life) and article 14 (prohibition of discrimination) rights. She had a clear interest in establishing the true state of the law affecting her because it impacted on decisions on whether she should or should not enter into civil partnership and whether she could or could not in any or in some circumstances adopt a child. The court found that, in the context of a case such as that of C and her partner, before they entered into a civil partnership, they would be eligible to be considered for adoption as a couple. The effect of the legislation was interpreted so as not to make it impossible for a gay person in a civil partnership to adopt but, as in the case of spouses, to require the adoption to be by both partners. While this does not mean that they have a “right” to adoption, they have the same entitlement as a matter of law as married couples to ask to be considered for adoption.
The issue of abortion, an important and emotive matter, has and is being considered in our courts. The existing criminal law in Northern Ireland regarding the termination of pregnancy in three circumstances, serious malformation of the foetus and pregnancies arising from rape and incest, has been the subject of much recent debate. Recently it was held that the criminal law in Northern Ireland was incompatible with article 8 of the Convention insofar as it criminalised the termination of pregnancy in these circumstances. The Northern Ireland Human Rights Commission had sought such a declaration pursuant to s 4 of the Human Rights Act 1998. It was the Commission’s case that the criminalisation of termination of pregnancy in these cases was incompatible with article 3 (prohibition of torture), article 8 (right to respect for private and family life), and article 14 (prohibition of discrimination) (read with article 8) of the Convention. The judge found incompatibility with article 8 and that decision has been the subject of a number of days' hearing in June this year in the Court of Appeal.
The department’s position is that the issues in this case are more appropriately dealt with by way of Government consultation. The courts should not interfere. The Attorney General submits that the only appropriate judge of what the law on abortion should be is the legislature. The courts cannot interfere. The Commission’s position is that the Government’s consultation process has demonstrably failed and that even where the department had proposed limited and insufficient change, its proposals were rejected by the legislature. Clearly these are important social issues which affect the citizens of this jurisdiction and on which we must reach our view. In light of my previous remarks it is of some significance that considerable emphasis has been placed by the applicant on material produced on this issue by the Committee for the Elimination of Discrimination against Women.
Another area giving rise to debate around social issues in our courts is the prolific use of social media. These types of cases have inevitably led to courts making decisions about the extent to which social media sites are liable for content on their sites posted by third parties. One such case is that of CG v Facebook Ireland Ltd and Joseph McCloskey. CG was convicted of a number of sex offences for which he was sentenced to 10 years' imprisonment with five years being on licence. At the time of his release he was fearful for his safety upon return to the community. Mr McCloskey operated on Facebook a page entitled “Keeping our Kids Safe from Predators 2”. McCloskey posted on his page a photograph of CG and information on his offending. The father of one of CG’s victims also had a Facebook page on which he made a series of postings about CG but against whom CG took no action given the harm CG had caused that individual’s child.
In respect of the postings by Mr McCloskey, CG brought an action alleging that each of the defendants had misused private information, were negligent, were in breach of articles 2, 3 and 8 of the Convention and of the Protection from Harassment (Northern Ireland) Order 1997, and that Facebook was in breach of the Data Protection Act 1998 and guilty of negligence. The court found in favour of CG, in that Mr McCloskey had misused private information; that he and Facebook should have known that the postings amounted to harassment; and that Facebook was guilty of misuse of private information but not breach of data protection in not deleting the postings. Facebook was ordered to remove the offending page and both defendants were made subject to an injunction preventing both from publishing information harassing CG. Damages were also awarded against both.
Plainly this is a case which is likely to have considerable repercussions for those providing social networking sites. The decision has implications for the circumstances in which those who control such sites have an obligation to carry out a policing function. There is clearly a potential for conflict between the public interest in ensuring the free exchange of information and the protection of the rights of those individuals who may be potentially harmed as a result of the disclosure of that information. It is classically a case where the courts are required to strike the balance between these two powerful interests and is a demonstration of the way in which the courts have now become involved in the day-to-day lives of so many citizens when making decisions of this kind. It is highly likely that this case will find its way to the Supreme Court.
The four cases to which I have referred can be described as the gay blood donation case, the same-sex adoption case, the abortion case and the Facebook case. They have all come before the courts in the last three years, and when one adds to them the gay cake case it is apparent that the effect of the changes in the judicial role that I have described above is that judges are now having to strike the balance between public and private interests in areas of the utmost social controversy where there are strongly held views and a sharp division of opinion, particularly on issues concerned with religious belief. That raises particular sensitivities in Northern Ireland where there is a significant faith community.
I accept that the determination of social policy is and must remain the province of the legislature and the executive. I also recognise, however, that these policy issues throw up difficult conflicts at the edges and the determination of these on an individual basis is proper subject for judicial determination. The balance to be assessed in many of these cases is the adverse impact on the individual of adherence to the values treasured by the community. The cases are never easy and the judge has to resist any temptation to become the decision maker. It is important when decisions are made that they should be explained as carefully as possible. That is where the media have a critical role in ensuring that the public are properly informed of the reasons for such controversial decisions. The proper functioning of the court’s role in this area is highly dependent upon accurate and informed discussion.
I now want to turn to the direction of travel for the future. The changes following upon the passing of the Constitutional Reform Act 2005 and the establishment of the Supreme Court in 2009 are now well entrenched. Clearly the influence of the European Court of Justice is likely to depend upon the outcome of the Brexit negotiations, but certainly will be at the very least diminished. Although there have been suggestions that the Human Rights Act 1998 should be replaced, it remains to be seen whether any replacement would markedly affect the nature of the rights upon which the citizen can presently rely.
One feature which may be worth mentioning is that domestic law has for perfectly understandable reasons focused very much on jurisprudence emanating from Europe. There is, however, a substantial body of relevant case law throughout the Commonwealth and in the United States of America. It will be interesting to see whether those common law jurisdictions may have more traction in the years ahead. Certainly in the Republic of Ireland considerable attention is paid to decisions of the United States Supreme Court, but that may be a reflection of the fact that Ireland has a written constitution which to some extent shares some similarities with the American equivalent.
Subject to those observations it seems to me unlikely that the role of courts in our democracy in securing the rule of law by the provision of independent and impartial determinations of even the most difficult and controversial issues is likely to change. Of course, as recent events have confirmed, predicting the future is hazardous!
The lecture was given at Dundee University in November 2016 as one of the Jean Clark Memorial Lectures, a series of lectures established by the Trustees of the Clark Foundation for Legal Education in memory of Jean Clark
Reproduced with permission of Sir Declan Morgan