News Constitutional Law Constitutional Protection without a Written Constitution 
| Constitutional Protection without a Written Constitution |
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| Tuesday, 08 November 2005 08:22pm | |
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Constitutional Protection without a Written Constitution Introduction I would like to start by expressing my gratitude to the Chief Justice and the Academy for the hospitality I have received so far. The Chief Justice even extended to me the great courtesy of meeting Lady Woolf and myself at the airport which we greatly appreciated. We were also very pleased that Justice Tan and the Director of the Academy, Ms Serene Wee, were there to meet us with two of the Assistant Registrars of the Court. It is a great honour to be invited to give this lecture. I am well aware that the fact that your distinguished Chief Justice, who continues to serve this jurisdiction with distinction, is graciously chairing this lecture significantly increases the honour involved in giving the lecture. The Chief Justice and I have known each other for some time. It was 10 year ago that I delivered the first part of my report on Access to Justice. For the purposes of that report, I visited Singapore and met the Chief Justice Yong Pung How for the first time. We had in common a profound belief in the importance of procedural justice and I like to think that shared belief has constituted a bond between us when we have met thereafter in different parts of the world. I believe that we are right to emphasise the importance of access to justice. Justice is valueless if those who believe their rights have been or are about to be infringed are unable to obtain access to a court and then obtain, within a reasonable time at a reasonable cost, a judgment which can be enforced. Equally, of course, the most efficient proceedings are valueless if the result of the proceedings is not a just decision. My visit 10 years ago vividly brought home to me what can be achieved by procedural reforms harnessed to an appropriate system of technology. I returned to England convinced that, so far as procedural justice is concerned, Singapore set the standards to which others aspire. Certainly, 10 years ago, Singapore provided an admirable model for a judge coming from the UK. I like to think, I hope not immodestly, that just as my visit to Singapore effected my thinking on civil procedure, so my report, in due course, not only improved English civil procedure, it also resulted in improvements in procedure in many parts of the common law world. Here I should mention that I am of course aware, that our Senior Master is regularly in contact with colleagues in Singapore; using the video telephone generously provided by Singapore for the purpose of discussing procedural issues of mutual interest. I hope these exchanges are a fruitful example of the benefits that can be achieved from discussions between different jurisdictions. Civil procedure is not the only area where there is commonality of interests between our two countries. Like the UK, Singapore is a member of the Commonwealth. I hope, therefore, to be carrying on discussions with judges and lawyers from Singapore not only during my present visit, but also at the Commonwealth Law Conference in London in September this year. An area where it may not initially be so apparent that commonality exists between our two jurisdictions is in relation constitutional issues. Of course, like the UK, Singapore has a Sovereign Parliament. Like the UK, Singapore is a democracy, though, unlike the UK, voting in Singapore is compulsory. Again, unlike the UK, Singapore has a single chamber parliament and does not have any institution equivalent of the House of Lords, of which our most senior judges are now, but will soon cease to be members because of the reforms to which I will refer later. Not withstanding these real and significant differences between our constitutional position and yours, it is my hope that what I have to say about developments in improving the protection of the rights of the individual in the U.K. will be of some relevance to my audience. After all, at least until independence, Singapore’s constitutional arrangements were in part dependant on those in the UK and until independence constituted part of the existing law of Singapore, the continued validity of which the constitution of Singapore recognises. THE NON ENTRENCHED CONSTITUTIONAL INSTRUMENTS However, I like to think that the fact that the HRA is not entrenched is more of a problem in theory than it is in practice. This is because I believe and hope that no government would feel it was politically desirable to attract the electoral odium involved in seeking Parliamentary support for tampering significantly with the Human Rights Act. The HRA has this protection because the Human Rights Act is one of the latest of a select succession of instruments which because of their constitutional importance have acquired a special status and have become part of our evolving constitutional settlement. The instruments which have this quality stretch back over the centuries to Magna Carta. They include the Habeas Corpus Act of 1679 the Bill of Rights of 1689 and the Act of Settlement of 1701. Over the same period the common law has as a result of the decisions of the courts been developing individual values over the centuries to which the courts extend special protection. It is the combined effect of these instruments and the development of the fundamental common law principles that can be traced back 790 years to Magna Carta that up to the present time have provided our constitutional protection. 790 years ago in 1215. At that time John was King of England and was having difficulties with his Barons. The difficulties arose because of the taxes King John had imposed. They were extortionate. In addition there had been ruthless reprisals against defectors and the administration of justice could be described as capricious. The result was that the Barons became disaffected. They knew John needed their support for his further military adventures and this strengthened their bargaining power. The Barons did not miss the opportunity. In January 1215, the barons collectively decided upon industrial action. They insisted that, as a condition of their support, John execute a charter that recognised their liberties as a safeguard against further arbitrary behaviour on the part of the King. On the 10th of June 1215, the barons and the King met at Runnymede and, in the meadow, compromised their differences and agreed terms which were outlined in the Articles of the Barons to which the King’s great seal was attached on 15th June 1215. The settlement which was reached was condemned by Pope Innocent He alleged the Charter was exacted by extortion. However, fortunately for us and for the history of common law rights, John met an early death a year later in October 1216. So the Charter survived and it remains a remarkable document even to this day. It goes far beyond what was needed to resolve the immediate dispute between John and his Barons. It was intended to govern relations between successive Kings and their most powerful subjects forever. After John died his son, Henry III ascended the throne at the age of 9 and was in no position to renew the struggle with the Barons. As you would expect, in view of the background to the Charter, pride of place was given to restrictions on the King’s ability to abuse his position by extracting extortionate taxes. However, the Charter protected heirs, who while under age were under the King’s control. John had treated their inheritance as his own. The medieval attitude towards women was not that of which we would approve of today. However, again, the language of the Charter is remarkably liberal in relation, for example, to widows. The practice had been to treat them as in the King’s custody so their land would come under his control. If the King was short of money, he would auction off widows for marriage to the highest bidder. One, noble but unlucky lady, who had been widowed and married 3 times was prepared to pay the King’s demand of £3000 to escape being married a 4th time. In contrast with this treatment, the Charter provided that widows were to have their “marriage portion and inheritance at once and without trouble” (chapter 7). What is more, no widow was to be compelled to marry “as long as she wishes to remain without a husband” (chapter 8). There is a provision contained in chapter 11 restricting the recovery of debts from Jews out of the estate of a debtor which certainly starts off by being racially discriminatory, but the sting of the provision is drawn by the concluding words of the chapter which provide, and I quote, “Debts owed to persons other than Jews are to be dealt with similarly”. The provisions I have already cited, you may agree with me, are remarkable for a document negotiated 790 years ago, but they diminish into insignificance when compared to those chapters dealing with the individual’s rights to justice. Here I will let the articles speak for themselves. I use their original chapter numbers:
These are the chapters at the heart of Magna Carta. They set out the sense rather than the actual words of the original Latin, but by themselves they justify treating Magna Carta as a document of outstanding importance. They, together with the other provisions of Magna Carta contain many of the core features of a legal system of a society that today adheres to the rule of law. They became part of the common law and as such part of the law of many countries and I would suggest, part of the law of Singapore. In Britain, Magna Carta has not had the public appreciation which it was entitled, but Sir Anthony Eden assessed its importance in terms which I would endorse:
We cannot afford to be complacent about our freedom. This was illustrated by the United Kingdom’s approach to the European Convention of Human Rights. The Convention is based on Magna Carta principles, but it was not until the year 2000, 50 years after it was ratified by the UK, that the Convention of Human Rights was expressly made part of our domestic law. This did not mean that the United Kingdom had no constitutional principles which had previously been identified as being part of our law. Dicey in “The Law of the Constitution” was adamant that the British constitution is founded on the rule of law. The meaning of the requirement to act in accordance with the rule of law goes beyond merely requiring everything to be done according to law. In a case before the Hong Kong Final Court of Appeal (Leung Kwok Hung and others v The Hong Kong Special Administrative Region FACC No.1 and 2 of 2005), the Court presided over by Chief Justice Li said “Hong Kong’s tradition of fundamental rights and freedoms took route long before the bill of rights was enacted and entrenched in 1991”. (The Chief Justice was referring to the Hong Kong’s Bill of Rights) The same statement is equally applicable to both our jurisdictions. It is this to which Lord Justice Laws referred in his article “Law and Democracy” 1995 PL 72 at p4 which was, of course, written before the Human Rights Act 1998. Laws J said:
This emphatic confirmation of the rule of law has to be compared with Lord Reid’s well known statement in Ridge v Baldwin (1964) AC 40 at p72: that “we do not have a developed system of administrative law – perhaps because until fairly recently we did not need it”. However Lord Reid was referring to the procedural rather than substantive shortcomings of English law. Procedural shortcomings which were shortly to be addressed, so that Lord Diplock, in 1974, stated that the effects of recent developments “has been to provide this country (meaning England) with a system of administrative law which is in substance nearly as comprehensive in its scope as droit administrif in France” 2It was the judges in England who were responsible for providing the new procedures that produced the improvement in the ability to control public bodies, including the government of the day, by developing the application for judicial review. These are the judges who are in direct descent from the medieval judges who from the 13th Century, travelled the country preserving the King’s peace. Their powers today are as they were in medieval times directly inherited from the King. It was because these judges had inherited the prerogative powers of the King, that they were entitled to claim that the powers of the Courts on applications for judicial review were so extensive. The courts could, ironically, use the prerogative remedies associated directly with the king such as certiorari, mandamus and prohibition to keep in order HM ‘s Government among others.3 As is now taken for granted, those powers were used extraordinary effectively from the 1970s to the present time to scrutinise the manner in which public bodies performed their role. They ensured that the powers of public bodies were exercised lawfully and fairly. Undoubtedly during my judicial lifetime, this is the area of English Law in which there have been the most radical developments. Rules as to standing have virtually become a dead letter. There is hardly an activity of a public body that cannot be reviewed. Ministers have, with regularity, had their decisions overturned. This was not because they had acted unconstitutionally, but because they had not complied with the law. In acting in this way, the judges were supporting the role of Parliament, not acting in conflict with it. When decisions of the government are overturned, there can be expressions of frustrations by ministers who feel that their will is being thwarted. However, this only happens when their powers are laid down in legislation because the minister is not carrying out the will of parliament. An advantage of the prerogative remedies is that they are discretionary. The judge has a discretion to refuse a remedy if it is not appropriate, for example, in the public interest to grant a remedy. There are strict requirements about expedition and the whole procedure is subject to a requirement of permission. These safeguards mean that while judicial review has confined the ability of ministers to exercise their powers in an inappropriate manner, ministers are still given ample scope to govern lawfully. In fact, the scrutiny that occurs on judicial review has had a beneficial effect upon administrative standards. Decision makers know that any decision or action which they take may come under close scrutiny from the courts and take appropriate steps to ensure that their decisions can stand up to that scrutiny. Improvements in administrative standards are the welcome result. The fact that in my jurisdiction the judges had developed a vigorous and active role on judicial review meant it was easier for our courts to absorb the effects of the European Convention of Human Rights when it became part of our domestic law. Nonetheless, the Convention has acted as a catalyst. It has accelerated the pace of changes that would in due course have occurred anyway as a result of the courts developing their powers on applications for judicial review. The changes brought about were described with great clarity in the year 2000 by Lord Hoffman when he said:4
THE CHANGING CONSTITUTIONAL ROLE OF THE JUDICIARY The degree of change is well demonstrated by two recent appeals from cases I was a party to in the Court of Appeal. One is a case5 where the decision of the House of Lords, unusually consisting of nine judges, is still awaited, but I refer to it because it was not argued despite the nature of the issue that had to be resolved, that it was other than an appropriate case for the courts to hear. What was in issue is the validity of two acts of parliament, the Parliament Act 1949 and the Hunting Act 2004. The hunting lobby’s reason for saying the 1949 Act is not valid legislation was that, while the 1911 Act could be used generally for passing legislation lawfully without the consent of the House of Lords after two years, it could not be relied on to amend its own provisions by reducing the delaying period from two years to one years. In due course the House of Lords will let us know the answer, but in the mean time I draw attention to the fact that this is an example of Judges having to adjudicate upon the powers of a parliament which is for general purposes sovereign. This is surely an interesting illustration of how in contemporary circumstances, the judiciary is now required to decide issues that would never even have been contemplated as being appropriate for the courts to become involved with even a few years ago. My second case concerns the detention of non citizens of the UK who are suspected of being terrorists without trial. The responsibilities of governments have been increased by the unprecedented threat of terrorism that has existed in many countries since 11 September 2001. That threat has been underlined by recent events in London. The UK government, in fulfilling its responsibilities to protect the public, has had to rely on the covert activities of their security services. The secret nature of such activities creates immense difficulties in making use of evidence obtained covertly to prosecute those who are suspected of being involved in terrorist activities. The problem is how to protect sources while at the same time meeting the procedural requirements essential for a fair trial in accordance with the rule of law. After the 11th September 2001, terrorist attacks in the United States, the British government introduced into Parliament the bill, which was very swiftly enacted as the Anti-Terrorism Crime and Security Act 2001. It also made the Human Rights Act 1998 (designated derogation) Order 2001.derogating, from certain provisions of the European Convention of Human Rights under a power contained in the Convention enabling this to be done in times of emergency. The legislation was intended to give emergency powers to the government to detain foreign nationals who were suspected of terrorist activities without trial. The power was not subject to the scrutiny of the ordinary courts, but it was subject to the scrutiny of a Special Immigration Appeals Commission, which included among its members High Court judges. In addition there is a right of appeal from that Commission, on a point of law, to the Court of Appeal and if appropriate, to the House of Lords. The appropriateness of the detention of suspected terrorists eventually came before the House of Lords, in what is colloquially referred to as the ‘Belmarsh case’, that being the prison at which those who were suspected but not charged were detained.6 The issue before the House of Lords was highly sensitive so again 9 judges sat to hear this case. With one dissention, they allowed the appeal of the detainees. Each of the judgments recognised the importance of the issues and acknowledged it was the Government’s proper role to identify the action which is necessary to protect the security of the public and this was not the responsibility of the judges. Lord Bingham made clear “these were matters of political character calling for an exercise of political and not judicial judgment”. He said “Just as the European Court allowed a generous margin of appreciation to member states recognising that they were better placed to understand and address local problems, so should national courts recognise, for the same reasons, that matters of the kind in issue here are within the discretionary area of judgment properly belonging to the democratic organs of the state. It was not for the Court to use authority properly belonging elsewhere”. Similar sentiments were expressed by other members of the Court. So it was accepted, that in relation to whether or not there was an emergency justifying the derogation, the opinion of the government should prevail. However, on that generally accepted premise, their Lordships went on to consider other issues which had to be weighed. Lord Nicholls, for example referred to the fact that:
Lord Hope referred to the words of Baron Hume, from the ‘Commentaries On the Law of Scotland’ written as long ago as 1844, that claimed; I quote “as indeed it is obvious, that by its very constitution, every court of criminal justice must have the power of correcting the greatest and most dangerous of all abuses of the forms of law, that of protracted imprisonment of the accused untried perhaps not intended ever to be tried” (para 100). This duty had to be balanced against the other duty of the Government to which I have referred. Lord Hope also referred to a further principle, that: “the right to liberty is to be enjoyed, without discrimination, by everyone.” (para 101) Having balanced the various interests involved, the majority allowed the appeal, primarily because the legislation discriminated between nationals and non-nationals, even though it was accepted that there was equal threat from both nationals and non nationals. That is an appropriate introduction to the final part of this lecture which summarises the dramatic constitutional changes that have been made recently in the UK. They include the granting of parliamentary powers to Scotland, Northern Ireland and Wales. There has been the change to the membership in the House of Lords, but from the point of view of this lecture most important of all, there has been the Constitutional Reform Act of 2005. It is therefore upon the Constitutional Reform Act 2005 that I wish to concentrate. The traditional British disregard for the separation of powers was personified by the Lord Chancellor. He is the Cabinet Minister who was also the constitutional head of the judiciary and “speaker” of the House of Lords. The continued existence of this constitutional anachronism had long been a subject of debate. The catalyst for change was, however, the decision of the Prime Minister to replace the Lord Chancellor with a Government Minister, known as the Secretary of State for Constitutional Affairs. The implementation of this decision brought sharply into focus the relationship between the judiciary and the Lord Chancellor. The great majority of the judiciary probably were of the opinion that the office of the Lord Chancellor served them well. The Lord Chancellor could use his influence in Cabinet to obtain resources needed by the court system and protect the independent role of the judiciary. However, whilst it was acceptable that the Lord Chancellor should perform these functions, it was not considered acceptable to have any other minister performing them. Long consultation then took place between the Lord Chancellor and myself as Lord Chief Justice. The result was a Concordat between the government and myself that set out the arrangements that in future are to govern the relationship between judges and government. Remarkably, this Concordat was not only endorsed by the Judges’ Council and thus all the judiciary but also by the different political parties as well as the government as a whole. The Concordat did not deal with all the reforms. The question of whether the House of Lords continued to be the final court of appeal of the United Kingdom was not agreed. Whether the office of the Lord Chancellor should be abolished, whether the holder of that office had to be a lawyer and a member of the House of Lords were also not agreed. As with the two cases to which I referred, it is not the detail that is important. What is significant about the package is, firstly the extent to which it was consensual and secondly, that the Concordat and the Constitutional Reform Act in implementing the Concordat creates a new appointment system with an independent Judicial Appointments Commission which is entirely separate from Government. The Lord Chancellor’s role is reduced to recommending to The Queen, judges who the Commission has identified, subject only to the Lord Chancellor’s ability to request that a nomination should be reconsidered or that another nominee should be put forward for appointment. In addition so far as complaints against the judiciary are concerned, the Lord Chief Justice and the Lord Chancellor are to have joint responsibility for dealing with them. The judiciary has the protection that no action can be taken unless both those officers agree. The sole criteria for an appointment by the Appointments Commission is to be merit. The Commission will, however, be under a statutory duty to increase the size of the pool from which appointments are made so as to improve diversity. I have no reason to think that the judges who will be appointed will be any better than the judges who had been appointed hitherto. However, there can be no doubt that the process will now be more open and transparent and so more acceptable to the public and this will help strengthen the independence of the judiciary and ensure that there can be no possibility of political interference with judicial appointments. This change in the constitutional position of the judiciary is therefore the latest event in the continuous evolution of my country’s unentrenched constitution. I referred earlier to the Judges’ Council. This is a body which I understand does not exist in Singapore, (no doubt because of the excellent work done by the Singapore Academy of Law). I, however, found the existence of the Judges’ Council of great value in my negotiations with the Government on the constitutional changes. At the beginning of my period as Chief Justice I had given it a new constitution and enlarged its membership so for the first time it was representative of all tiers of the judiciary from the judges of the House of Lords to lay magistrates and lay members of tribunals. It has given the whole of the independent judiciary an independent voice. CONCLUSION That is the last point I would like to make and I will only detain you for a few moments while I draw attention to what I believe are the consequences of what I have had to say. The first is I hope is not controversial. It is that while I celebrate with you Singapore’s 40 years of independence, both our countries share a most important ancient heritage in the rule of law. A heritage that it is the responsibility of the judiciaries in both countries to protect at all costs Secondly, that although unlike almost every other developed country, the UK has no entrenched constitution because Parliament has used its sovereign power generally in an enlightened manner this has benefited and strengthened, rather than hindered, my country’s adherence to the rule of law. However, while this is the position, the judiciary must, like all other judiciaries, still be alert to the possibility that even in a Parliamentary democracy as old as ours, there can be occasions on which Parliament or the Government of the day will use its powers in a manner which clearly is in conflict with the rule of law. If that should happen, then the judiciary as the arm of government primarily responsible for upholding the rule of law must fearlessly make this clear. Finally, to enable this to happen it is critical to ensure that there is access to the courts to enable justice to be done. This is my recipe for upholding the rule of law in the UK. I hope and believe it is a recipe some ingredients of which could commend themselves to my colleagues, the judiciary of Singapore. 1 As recounted by the MR in a speech on Magna Carta. 2 (the 1974 CLJ 244.) 3 (Now known, thanks to the one Access to Justice reform, for which I deny any responsibility, as quashing orders, mandatory orders and prohibition orders). 4 in R v Secretary of State for the Home Department ex parte Simms (2000) AC 115 at p131. 5 R (on the application of Jackson & Ors) v. Attorney-General (2005) EWCA Civ 126. 6 in 2004 in A and X v Secretary of State of the Home Department [2005] 2 AC 68. *The Webmaster would like to thank the Rt. Hon. Lord Woolf for being so kind to give his permission for his lecture to be reproduced on the Malaysian Bar Website.
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