THE MODERN DEVELOPMENT OF PUBLIC LAW IN BRITAIN; AND THE SPECIAL IMPACT OF EUROPEAN LAW

• Citation: (1999) 11 SAcLJ 265
• Date: 01 December 1999
• Author: Lord Irvine of Lairg
• Published date: 01 December 1999

1. INTRODUCTION

I am honoured to have been invited to give this sixth Annual Lecture to the Singapore Academy of Law. I follow a line of distinguished speakers from Commonwealth countries who have given the Annual Lecture since its inauguration in 1994. Let me for one moment remember Lord Chief Justice Taylor. He delivered the Inaugural Lecture. His premature death in April, 1997, took from Great Britain a strong leader who was held in the highest regard in Britain and across the common law world.

The Singapore Academy of Law was established in 1988 primarily to promote continuing legal education and to provide a forum for informal interaction between members of the different branches of the legal profession in Singapore. However, in 1995, the role of the Academy was extended to include, among other things, the undertaking of activities and projects relating to the study, development and operation of laws and legal systems and the facilities, information technology and infrastructure in support of them.

I am hugely impressed by the way in which you, in Singapore, have harnessed the benefits of information technology to improve the efficiency of your civil procedural system. The most obvious example of this is the Electronic Filing System launched in 1997. I understand that the Academy has, or soon will, take over responsibility for its running, and already operates the LawNet system in Singapore. I am afraid that we, in the United Kingdom, have yet to realise the full potential of information technology in the area of civil procedure and we have much to learn from you.

However, the use of information technology is only one of the many changes which have taken place in the administration of justice in Singapore since Chief Justice Yong Pung How, also President of this Academy, took office. One of the most fundamental was the abolition of the final right of appeal to the Judicial Committee of the Privy Council in London. Whilst we value greatly our links with Singapore, both historical and modern, it is clearly right that the final court of appeal for Singapore should be determined by Singapore and be one that is closely responsive to the needs of Singapore. Other less substantive changes, such as that in relation to court dress, are changes of which I am sure many of the English judiciary are envious!

You have also instituted a number of procedural reforms in the Supreme Court with a view to reducing the cost and time of proceedings. These reforms have largely been successful in reducing the backlog of cases and for that I congratulate you. We have recently instituted procedural reforms in England and Wales with a view to achieving a similar end — primarily ensuring that the time and cost of proceedings are proportionate to the value of the claim. I mention these reforms because I strongly endorse your President’s stated view that the courts are accountable to the public for the efficiency of the legal system.

At the opening of this legal year your Chief Justice commented that it marks the 30th anniversary of the passing of the Supreme Court of Judicature Act in Singapore. He rightly took pride in the fact that, in the ensuing years, you have not simply preserved but have enhanced the rule of law. He noted the heightened public expectations of the legal system, and the need not only to meet these expectations but to strive to surpass them.

The way in which the role of government has evolved over recent decades has contributed substantially to the public’s increased expectations of the legal system. The United Kingdom is a case in point. In Britain, it has traditionally been Parliament’s function to ensure that government is conducted responsibly. However, as the role of the state steadily expanded, it became increasingly apparent that Parliament could no longer, on its own, secure accountable government. This is the context within which modern administrative law evolved in the United Kingdom. As Lord Mustill put it, in order to “avoid a vacuum in which the citizen would be left without protection against a misuse of executive powers, the courts have had no option but to occupy the dead ground [left by Parliament] in a manner, and in areas of public life, which could not have been foreseen 30 years ago”.1

Against this background, it is my purpose tonight to address some of the most significant recent developments in English public law and, in particular, to explore why British administrative law has developed in the way that it has. However, before turning to specific principles of public law, it is necessary to consider the constitutional context within which it has grown. Only by understanding the key components of that constitutional framework, and the way in which those components interrelate, is it possible to appreciate why English administrative law exists in its current form — and how it is likely to evolve in the future.

2. ENGLISH ADMINISTRATIVE LAW IN ITS CONSTITUTIONAL CONTEXT

2.1 Public Law and Constitutional Principle

Public law is, inevitably, the product of a complex interaction of social, political and legal forces. However, it is undoubtedly the case that, pre-eminent among the numerous influences which have shaped the development of administrative law in England and Wales, are the twin principles of parliamentary sovereignty and the separation of powers. Let me consider each of these in turn.

2.1.1 The Separation of Powers

It has long been accepted that a proper balance of powers is fundamental to any concept of constitutionalism. The idea which lies at the core of the separation of powers theory — that the legislative, executive and judicial functions of government should be discharged by independent institutions — is strikingly simple. Unsurprisingly, however, the way in which different countries give expression to this concept is coloured by their own legal and political traditions.

In the United Kingdom, the approach taken is essentially pragmatic and there is no mechanical adherence to a rigid doctrine of the separation of powers. As political, legal and social conditions evolve over time so, too, conceptions change of what the respective institutions of government should do, and of the powers which each should exercise over the others.

Lord Denning, who died earlier this year after reaching his hundredth birthday, made a profound contribution to the development of modern administrative law in Britain. Writing twenty years ago, he recognised that, “The great problem before the courts in the twentieth century has been: In an age of increasing power, how is the law to cope with the abuse or misuse of it?”2 It is the flexible pragmatism that lies at the heart of the British conception of the separation of powers which has permitted the courts to rise precisely to this challenge. Lacking either a sovereign constitutional text or a legislative foundation on which to base a modern system of public law, the courts set about the task of adapting ancient remedies, such as the prerogative writ of certiorari, to more contemporary needs. Such organic development is the hallmark of British public law, which continues to evolve as circumstances require. Thus, for example, growing judicial awareness, in the 1980s, of the way in which some quasi-governmental functions were coming to be discharged by non-statutory agencies prompted the courts to extend the reach of their supervisory jurisdiction in order to permit the legal regulation of such

bodies.3 In this way, the informal flexibility of the unwritten constitution and the pragmatic theory of the separation of powers which underlies it have been central to both the inception and evolution of contemporary administrative law in Britain.

2.1.2 The Sovereignty of Parliament

This, however, is only part of a larger constitutional picture. As well as understanding the constitutional forces which have made possible the organic growth of public law, it is also necessary to appreciate the limits which constitutional principle has imposed upon its development. It is the doctrine of parliamentary sovereignty which exerts the most profound influence in this area: let me outline, briefly, how it has shaped the constitutional framework within which judicial review has developed.

The theory of legislative supremacy is one of the fundamental pillars of our constitution. Viewed in its contemporary setting, it expresses the primacy which is attached to democracy in the United Kingdom, by precluding interference with that which has received the approval of the legislature. For this reason, the courts are not constitutionally permitted to question legislation which has been passed by Parliament. Judicial review in Britain is therefore restricted to administrative action, and does not extend to primary legislation.4

As well as determining what the courts may review, the doctrine of parliamentary supremacy profoundly affects how they exercise their supervisory jurisdiction. It is a function of Parliament’s sovereignty that it can choose in whom to vest decision-making power. It is therefore crucial that the courts should carefully distinguish between the legality of executive decisions and their merits. While adjudication on the former is pre-eminently a matter which lies within the constitutional province of the judiciary, the latter is not: if the courts enquired into the merits of decisions which a democratically-elected Parliament had remitted to a specific agency, the judges would — contrary to Parliament’s intention — usurp the agency by acting as primary decision-maker. This, in turn, would undermine both the constitutional principle of parliamentary sovereignty and the democratic imperative on which it is based.

I shall have a good deal more to say about these issues later, when I consider how the constitutional framework impacts upon specific principles of administrative law. My present concern, however, is with the nature

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