Powerless Law

Timothy Endicott’s challenging views on law and the constraint of public power

Last week, I had the good fortune of attending the 2016 Robin Cooke lecture, delivered by Timothy Endicott. Professor Endicott’s talk, entitled “Lawful Power” was very thought-provoking, so I’ll try to summarize it here, based on the notes I took, and offer some thoughts of my own. Fittingly for a lecture named after a judge who mused about the existence of “common law rights [that] lie so deep that even Parliament cannot override them”, and a past edition of which saw Chief Justice McLachlin assert that courts can and sometimes should invoke unwritten constitutional principles, which she described as a form “modern natural law”, to invalidate legislation, prof. Endicott’s lecture explored the limits of law and government power. It too asserted the existence of “lawful powers” which many others would deny. However, it attributed such powers not only, indeed not so much, to the judiciary, but also, especially, to the Crown.

 * * *

Prof. Endicott’s headline claim that is public bodies can exercise power for the purposes for which it exists, regardless of whether the law specifically authorizes them to exercise this particular power. They all ― not only the Crown, but especially the Crown ― enjoy a form of prerogative, which prof. Endicott insists, following Locke, is not a “right to do wrong”, as many in the United Kingdom (and, I would add, elsewhere) believe, but rather a right to do good without a rule to justify the good deed. Focusing on the exercise of Crown prerogative to trigger the procedures leading to the United Kingdom’s exit from the European Union, prof. Endicott argues that it is within the purpose for which the foreign affairs prerogative exists, and thus lawful. The enactment of legislation, which those challenging to the use of the prerogative claim is necessary to grant the Crown these powers, would not add to the UK’s being ruled by law.

The trouble, prof. Endicott says, is that very few people in the United Kingdom’s history ― other than John Locke, perhaps Blackstone, and, less auspiciously, Charles I ― have much “thought about what the executive power was for”. Indeed, people’s thinking about what the executive branch is is distorted. In prof. Endicott’s view, the executive in Westminster systems it is very much a democratic and accountable one ― as least as much as, if not more than, Parliament itself. “The United Kingdom is not actually a kingdom”, he says, and the prerogative is not in a real sense a royal one. It is, by convention, exercised by the Cabinet, which is more concerned about the next election than individual members of Parliament. It is thus dangerous not to think of the Prime Minister as the people’s representative ― only if we recall that this is what she is can we think clearly about the scope of the powers she ought to be able to wield. Ultimately, in prof. Endicott’s view, it is impossible to exhaustively define the powers that public bodies will need to exercise in advance. If the executive’s prerogative power were abolished, it would need to be replaced by a very wide-ranging delegation. From a Rule of Law perspective, would that improve matters? As things stand though, the executive’s prerogative powers simply have no identifiable source ― they certainly do not arise from the common law: it is not judges that made the prerogative, but the prerogative that first made the judges.

Shifting from the executive to the legislative power, prof. Endicott argues that  Parliament’s powers too are effectively a form of prerogative ― an ability to act for the public good within bounds that are undefined and cannot be defined except by reference to the purpose of this power. Parliamentary sovereignty doesn’t mean that Parliament is entitled to enact any law (as the orthodox view has it). Parliament could not, for instance, repeal the Canada Act 1982 (which renounced legislative authority over Canada); and judges, such as (the future) Lord Cooke, have suggested the existence of substantive limits on legislative power. The better way to understand Parliament’s legislative power is that it is not “an absolute power, but an unspecific one”. Parliament itself determines its scope, and neither the courts nor anyone else can interfere with these determinations. Importantly, this rule is not (contrary to what some of the judges in R (Jackson) v Attorney-General, a.k.a. the Fox-Hunting Case, have suggested) of the judges’ making, nor is it for judges’ to do with as they please ― as a matter of law, at any rate.

Turning to the judiciary, prof. Endicott notes that courts have the power to change the law ― they can overrule precedent for instance ― but not in just any way. For example, a court could not abolish mens rea requirements in criminal law. Until the 16th, maybe even the 17th century, courts did not claim the power to interpret legislation. They have asserted this power, and it is generally accepted now, but it has no source that we could be point to. Nor is it clear what is the source of the judicial power to resolve cases when the law is not clear. Like those of the executive and of Parliament, the courts’ powers are unspecific, and prof. Endicott says, nothing would be gained by attempting to specify and circumscribe these powers in advance.

Prof. Endicott concludes from this that we should acknowledge as lawful powers of public bodies those that the law should recognize them as having, instead of obsessing about defining these powers in advance. To be sure, we should be skeptical of government power; but in order to be healthy, our skepticism of the executive branch cannot overtake that of Parliament, the courts, and indeed the voters. Trusting the latter but not the former does not make for a balanced constitution. In the end, it is not the constitution that will save us from “nightmare scenarios”, but “a political culture” such that these scenarios are “genuinely not on the table”.

 * * *

There is a lot to think about here. In an understated manner, prof. Endicott points to some very inconvenient truths for those who care about the Rule of Law. At the same time, his own framework is arguably too optimistic, and one would like to think that an alternative is possible.

Prof. Endicott is right, I am afraid, that a meaningful comprehensive prospective definition of the legal powers of all public authorities is impossible. This is perhaps most obviously so with the courts, for the reasons prof. Endicott outlines. His argument on this point is reminiscent of HLA Hart’s insistence, in The Concept of Law, that

when courts settle previously unenvisaged questions concerning the most fundamental constitutional rules, they get their authority to decide them accepted after the questions have arisen and the decision has been given. Here all that succeeds is success. (2nd ed; 153)

With legislatures, it is tempting to think that the matter is different. To be sure, the constitutions of the United Kingdom and New Zealand do not seek to set out the scope of the “lawful powers” of their Parliaments in advance in any meaningful way. (New Zealand’s Constitution Act 1986 provides, in s 15(1), that “[t]he Parliament of New Zealand continues to have full power to make laws”, which rather proves prof. Endicott’s point about the futility of vague delegations of power.) But other constitutions, like those of Canada and the United States ― especially the latter ― seek to define the legitimate scope of legislative power, by specifying both the ends to which it can be used in the provisions relative to the federal division of power, and substantive limits on rights-protecting constitutional provisions. Yet any attempt to define legislative power in advance must allow for legislative responses to currently unforeseen circumstances; hence the vague residual powers such as the states’ police power in the United States, or Parliament’s “peace, order, and good government” power in Canada. As for substantive rights-protecting limits, they are necessarily incomplete. They might prevent legislatures from killing all blue-eyed babies, to give a classic example from discussions of Parliamentary sovereignty, but usually have nothing to say about, say, the imposition of confiscatory tax rates, and any number of other forms of iniquity or stupidity. To some substantial extent, Canadian and American legislatures too are entitled to define the scope of their own law-making powers.

The notion that “government in all its actions is bound by rules fixed and announced beforehand” ― FA Hayek’s definition of the Rule of Law itself ― might thus be naïve. Yet might not it be applicable to “government” in a narrow sense ― that is to say, to the executive? Here, I would desperately like to part ways with prof. Endicott. He is right to insist that we should not trust Parliament, the courts, and the voters even as we distrust the executive. I do not trust them either. But the executive is, arguably, somewhat different from the other powers of the state, to say nothing of the electorate: it can interfere with citizens much more readily than Parliament or the courts.

Enactments and judicial decisions (and for that matter at least some administrative ones, suggesting that we perhaps should not speak and think of “the executive” as a whole, but of its multitudinous components) are only made following certain procedures. Legislation must be implemented, and its implementation can often be challenged in court. Judicial process (and, again, often administrative process too) allows directly affected parties to participate, and sometimes to appeal. Even the constitutionality of legislation can sometimes be challenged. In short, there is a certain distance, a certain buffer zone, between the exercise of the government’s legislative or judicial power and the citizen.

By contrast, there is no such buffer zone between a citizen and a policeman pointing a gun on him; or a citizen and government agent reading tapping her phone, or reading her intercepted emails. Sure, there might be after-the-fact remedies against abuses of executive power ― often better remedies than those against abuse of judicial and especially legislative power. But the abuse, in many cases, has already occurred, and can at best be compensated, not undone. This, it seems to me, is a good reason for wanting to treat executive power differently, and confine it ― or at least some of its manifestations ― within limits set out in advance , so as, to come back to Hayek, “make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge”.

 * * *

Prof. Endicott struck a rather optimistic tone, arguing that we can embrace, and need not fear, public powers acting for the greater good, without rules. Yet for me, his thesis is a pessimistic if not an altogether dystopian one ― it is a thesis not so much about “lawful power” as about the law’s powerlessness to constrain public authority. But however much we might dislike this vision, I think prof. Endicott’s argument is a very challenging one. It may well mean that we have to re-think our views of the Rule of Law to at least some extent. It encourages us to reflect on the nature and purpose of public powers, and especially of the executive power, and on the strength of the latter’s claims to legitimacy independent of that of Parliament. (On this last point, I wonder if prof. Endicott’s argument is affected by the Fixed-Term Parliaments Act in the United Kingdom.) The best, and certainly the most interesting, thinkers are not ones one agrees with all the time; they those disagreeing with whom forces us to re-examine our views and to sharpen them, because complacency in the face of their challenge is not an option. Prof. Endicott is one of them.

 

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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