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The Prince, the mother, and the principle of legality

15 June 2015

This article first appeared in Australasian Lawyer online.

Two recent judgments – one relating to the release of Prince Charles’ letters to members of the Blair Cabinet, the other to an anti-discrimination claim brought by the mother of a profoundly disabled son – have engaged appellate courts in an analysis of fundamental principles underlying the rule of law.

In reaching their determinations, both the UK Supreme Court and the Court of Appeal in New Zealand cited Lord Hoffman in R v Secretary of State for the Home Department, Ex p Simms, where he said:

“[T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual”.      

At issue in the United Kingdom case was whether the Attorney General had exceeded his authority when using section 53 of the Freedom of Information Act 2000 (FOIA) to veto the Upper Tribunal’s (for all intents and purposes, a court) release to the Guardian newspaper of some of Prince Charles’ “advocacy correspondence” with the government.

At issue in the New Zealand case was whether legislation passed by Parliament, with the intention of extinguishing rights that might otherwise accrue to Margaret Spencer as the full-time carer of a Down’s syndrome child, did in fact achieve that objective.   

As noted above, the two cases traverse similar legal terrain. They remind us, while Parliament is supreme, under the rule of law the principal expression of Parliament’s intent is the words Parliament passes into law. This is an important reminder as practitioners and even courts become less restrained in their reference to parliamentary and departmental materials to divine Parliament’s intent.

UK Supreme Court judgment

In R (on the application of Evans) v Attorney General, the Supreme Court divided on whether the Attorney General had “reasonable grounds” to exercise the power of veto under s 53. 

The President, Lord Neuberger (with Lords Kerr and Reed concurring) was strong in his view that, if s 53 was to entitle a member of the executive “to overrule a decision of the judiciary merely because he does not agree with it”, this must be “crystal clear” in the wording of the FIOA.  It could not be justified by “general or ambiguous words”.  The Attorney General’s exercise of the veto power was thus unlawful in simply coming to a different conclusion than the Upper Tribunal based on the same considerations.

Lord Hughes (dissenting in part) agreed “only the clearest language” would qualify but thought the test was met in this instance.  Parliament could have limited the application of s 53 to circumstances where fresh material had come to light or where the decision of the Information Commissioner or court could be shown to be demonstrably flawed at law.  But it had not imposed these limits.  It followed that the Attorney General was entitled to differ from the Upper Tribunal on where the balance of public interest lay. 

Lord Mance (and Lady Hale) also considered that s 53 had been intended by Parliament to have wider application than Lord Neuberger assigned it.  However, they thought the Attorney General had proceeded on the basis of findings which differed radically from those of the Upper Tribunal “without any real or adequate explanation” and this failure meant that the disagreement had “not been justified on reasonable grounds”.

Lord Wilson (dissenting) said that the Court of Appeal had not interpreted s 53 but rewritten it.  Parliamentary sovereignty was among the most precious principles in the British constitution, and it was evident in the several safeguards the FOIA put around the use of s 53 that Parliament had recognised the override might allow “executive encroachment upon the rule of law”. 

NZ Court of Appeal

First, some background: the Court of Appeal refers to the “Atkinson policy”, which is shorthand for the Government’s view of a social contract making parents (and spouses) the natural supports for disabled family members such that they are disentitled to financial assistance from the State for that support.

The name is recent, and a little ironic.  It comes from the Atkinson litigation in which a group of affected families (not including Mrs Spencer, although she was later joined as a party) brought a claim to the Human Rights Review Tribunal alleging discrimination on the grounds of family status, contrary to the Human Rights Act and New Zealand Bill of Rights Act (BORA).  They won, and subsequently defeated appeals in both the High Court and the Court of Appeal.

After the Court of Appeal decision in Atkinson, two things happened: Mrs Spencer individually sought a judicial review in the High Court after (again) being refused a carer support allowance, and – a week before her claim was to be heard – Parliament sitting under urgency legislated to amend the New Zealand Public Health and Disability Act 2000 to close off any remaining liabilities arising from the Atkinson judgment.

The relevant provisions (Part 4A):

  • prohibit the Crown from paying a family member for providing support services unless the payment is permitted by an applicable “family care policy”
  • assert the Crown always had, and continues to have, authority to adopt, change, cancel or replace a family care policy (which it later argued included the Atkinson policy), and
  • prevent any further complaints to the Human Rights Commission or any court (except for the Atkinson proceedings themselves).

Mrs Spencer then filed separately for declarations about the effect of Part 4A.  The High Court found for her on all counts and the Ministry of Health appealed to the Court of Appeal.  There was no dispute in Attorney-General v Margaret Spencer that Part 4A prospectively validated the Atkinson policy.  The question was whether it also removed any rights Mrs Spencer may have accrued before Part 4A was passed.

The Court of Appeal said the amendment did not achieve the asserted intention to retrospectively validate the Atkinson policy because the Atkinson policy was manifestly not a family care policy.

“A family care policy now has a discrete and self-contained definition, explicitly based upon the Ministry’s power to pay “in certain cases” for providing support to family members….We cannot be expected to strain Parliament’s language to incorporate by implication or corollary within the scope of that permissive definition a prohibitory policy which had the opposite purpose and effect, or to read into the plain words of the text what the Ministry now submits the words were meant to say”.
“If the legislature intended… to give the Atkinson policy retrospective authority, it could and should have said so.  In other contexts, Parliament has done just that.”
“The political context cannot assist where the legislature elects to frame its formal response to judicial decisions in terms which plainly do not reflect the intention now ascribed to them.”

Parliament thwarted?

In each case, the UK and NZ parliaments knew they were entering treacherous constitutional waters. There is no question they could successfully have navigated their way – Parliament is, after all, supreme – and the courts could see their intended destinations.

The difficulty for the legislatures was charting the right course, and both ran aground on the protective reefs of the rule of law, more discriminately identified by the courts.

This article was written by Pheroze Jagose and Jeremy Upson.

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