Thomas Roe QC recently spoke at the Commonwealth Law Conference in the Bahamas on the topic of Public Interest Litigation. Please find below a copy of his speech.
When we speak of public interest litigation, we mean of course litigation that is not simply about the private law rights of one person, nor even the public law rights of one person, but about seeking, through strategic litigation, to obtain some change in the law or in public affairs generally, or some generally applicable result on behalf of a large class of people. Litigation, that is, that is designed in some way to advance the public interest. Or rather, more accurately, to advance what the claimants think is the public interest.
Now David Greene of Edwin Coe is going to speak to you later about the practicalities of bringing public interest litigation. And since anything that David does not know about that subject is probably not worth knowing, I am not going to say much about it. Instead, what I want to do is to highlight some themes concerning the overall way one might want to argue cases if one finds oneself as the lawyer charged with bringing, or for that matter defending, a piece of public interest litigation.
In Oscar Wilde’s play, the Importance of Being Earnest (A Trivial Comedy for Serious People), the Honourable Miss Gwendolen Fairfax at one point produces her diary from her bag, and she says, ‘I never travel without my diary’, adding, by way of explanation, ‘One should always have something sensational to read in the train.’
I don’t know that this is advice that is often followed by judges. But one judge who did follow it was Lord Hope, a fairly recently retired Law Lord and then Justice of the Supreme Court of the UK. His diaries certainly provided him with sensational reading, at least in parts, for they contain vivid behind-the-scenes descriptions of private discussions between judges. Not only did Lord Hope keep such a diary, but he subsequently published it, covering the whole period from his time as senior counsel in Edinburgh to his retirement from the Supreme Court in 2013. I can’t say I completely approve of that. But that doesn’t mean that I’m not going to tell you about one diary entry. He is writing about the Privy Council decision in Boyce in 2004. This, as many of you will know, was the Barbados case about whether the mandatory death penalty for murder was compatible with the Constitution. The answer in my view (though I know others strongly disagree) is that it was compatible. Why? Well, because whatever one may think of it, it was a law that existed at independence, and the Constitution is quite clear in section 26 that no such law shall be held to be incompatible with the Constitution. As Lord Hoffmann put it, section 26 ‘reserves to the Parliament of Barbados the power to decide whether any existing law should be amended or repealed to conform to’ the sections of the Constitution that provide for fundamental rights.
That was Lord Hope’s view, and indeed the view of the majority of the nine judges who heard the case. It was not, of course, the view of, among others, Lord Bingham, Lord Steyn and Lord Walker, who were persuaded by an argument that a provision of the British Order in Council bringing the Constitution into force, which said that existing laws were to be read with such modifications as were necessary to bring them into conformity with the Constitution, meant that one could read the mandatory death penalty as a discretionary one. It’s an argument that, to my mind at least, Lord Hoffmann convincingly demolished in his judgment, pointing out among other things that ‘into conformity with’ the Constitution meant into conformity with the whole Constitution, including section 26. It did not mean into conformity with the bits of the Constitution that the court approved of. As Lord Hoffmann observed, the court was no more entitled to construe the Constitution as prohibiting the mandatory death penalty than it was entitled to construe the Constitution as requiring that Barbados become a republic.
Now Lord Hope, whose diaries I mentioned a moment ago, was in the majority with Lord Hoffmann. And when he got back to his flat in Gray’s Inn that evening, he put pen to paper about the day’s events. He did not hold back. He wrote that the minority showed
‘predictable scorn, anger and resentment at the result, which left them in the minority. It was all’, he went on, ‘most unfortunate. But the most regrettable thingis that Tom and Johan [Lord Bingham and Lord Steyn] are so emotionally involved in the subject that they are incapable of deciding the case according to the law which the constitutions have laid down for us. Never was it clearer that the duty of a constitutional court is to put aside personal inclinations and prejudices – a principle to which Tom subscribes on paper but cannot grasp. It is so easy to get carried away by a crusade for justice and human rights, and by the idea that changing values should prevail over what the Constitution actually says. But, oh how dangerous this is in the wrong context! The existing law clauses in these constitutions are as much a part of the Constitution as the clauses which set out the fundamental rights and freedoms. To bend them to secure one right may have grave consequences elsewhere. The constitutional imperative has to be respected.’
I should make clear in fairness to Lord Hope that there are lots of other entries speaking of his affection and respect for Lord Bingham and Lord Steyn.
Well, Barbados, as of course we all know, later withdrew from the Privy Council and acceded to the appellate jurisdiction of the Caribbean Court of Justice, and when the same issue arose there three years ago the Court decided in a case called Nervais, to quote the great Sir Dennis Byron whose name stands at the head of the main judgment, that
‘The proposition that judges in an independent Barbados should be forever prevented from determining whether the laws inherited from the colonial government conflicted with the fundamental rights provisions of the Constitution must be inconsistent with the concept of human equality which drove the march to independent status.’
As a judgment, it is, at least to my mind, a breath-taking assertion of judicial power. The savings clause, which was put into the Constitution by the representatives of the people of Barbados when they wrote their Constitution, is simply brushed aside. In a great irony, Sir Dennis and the other judges rely among other things on an observation about the savings clause as being needed to secure an orderly transition that had been made in another case by none other than Lord Hope. I wonder what Lord Hope says about that in his diary, and I wonder what he will confide to his diary about the upcoming case from Trinidad and Tobago in which I understand the same point will arise again.
Now why do I mention all of this in the context of a talk about public interest litigation? After all, defending death penalty cases is not most people’s idea of what we mean when we talk about public interest litigation. Partly, to be honest, because the role of the Privy Council and the Caribbean Court of Justice seems to have been such a hot topic at this conference that it seemed a shame not to mention it at all. But more importantly it seems to me to be an example of something that is atypical. It, by which I mean especially the CCJ judgment, is perhaps an example of what AP Herbert called Misleading Cases. My point is not that I think it is wrong (though as you’ve probably gathered I am rather sceptical about it). Rather, my point is that one cannot expect sweeping statements about philosophy, equality, the march to independence, to feature in the judgments of most judges in most cases. That, I think, and I’ll come back to this point, is something that lawyers who take on many sorts of public interest litigation, are sometimes prone to losing sight of.
Now I don’t mean by that to denigrate lawyers who take on public interest cases. That would be self-denigration, given that in the last few years I have been privileged to work on many public interest claims.
I don’t claim any particular wisdom as a result of having done these cases. But I have noticed a few things that I thought it might be helpful to impart, even at the risk in some cases of stating the obvious, particularly to some of the older hands in the room.
One of them is that if you are acting for the claimant side it is generally useful to find a claimant, or some claimants, or if it’s a class action some leading claimants, who (1), have standing to bring the claim, and (2) have an attractive case on the facts.
The first is obviously essential. Now, the subject of standing to bring public interest claims would merit a talk all of its own, but for present purposes I merely flag up the point as an important one. If you want to read an important case on this subject I would commend to you the Trinidad and Tobago case of Dumas v AG, which concerned whether a claimant could challenge the legal validity of a particular appointment to the Police Service Commission. The claimant was not saying his fundamental rights had been affected, nor indeed that he personally had suffered any particular prejudice. He was simply a concerned citizen. The Court of Appeal, in an (if I may say so with respect) illuminating judgment by the then Justice of Appeal Jamadar, held that the claimant did have standing. He said, in a judgment later upheld on appeal by the Judicial Committee:
‘In our opinion, barring any specific legislative prohibition, the court, in the exercise of its supervisory jurisdiction and as guardian of the Constitution, is entitled to entertain public interest litigation for constitutional review of alleged non-Bill of Rights unlawful constitutional action; provided the litigation is bona fide, arguable with sufficient merit to have a real and not fanciful prospect of success, grounded in a legitimate and concrete public interest, capable of being reasonably and effectively disposed of, and provided further that such actions are not frivolous, vexatious or otherwise an abuse of the court’s process.’
As to my point about finding claimants whose cases are attractive on the facts, we are apt as lawyers to forget that cases are often decided on the facts. The facts very often matter far more in legal practice than our training as lawyers anticipates. So, if you are in the situation of seeking to advance a claim that any number of people could advance—perhaps you are challenging a law as unconstitutional; or perhaps you are just saying that an administrative practice by the government is contrary to an ordinary statute, as properly understood—find someone to be your claimant whose case compels sympathy at the human level. Of course, that is not a legal requirement, and judges swear, when they are appointed, to ‘do right to all manner of people after the laws and usages of this realm [or state], without fear or favour, affection or ill will’, which no doubt explains why the judges in England said that the Home Secretary’s role in sentencing should in principle be removed from him, even though they did so at the suit of a man who had kicked someone to death during a theft. But given a choice, do find somebody a bit more appealing if you can. One wonders, for example, whether it really helped the claimants, in the recent unsuccessful challenge in England to the Government’s emergency coronavirus regulations, that the first claimant was not a person who lived in England and was directly affected by the so-called lockdown but a man living in Monaco who claimed that the regulations had prevented him from flying to England to participate in demonstrations against them.
My second broad point is about professional detachment. Most of us have causes that we feel strongly about. Obviously arguing a case that you agree with personally has some advantages. We are all of us generally more persuasive when we have first persuaded ourselves. But it’s equally a potential trap. A few years ago there was a case in England about the right to use imperial measurements rather than the metric ones that our membership of the EU required us gradually to adopt. Some traders felt very strongly about that, and their deliberate refusal to obey what they felt was an unjust law led to the seminal decision in Thoburn v Sunderland City Council, a decision of that great jurist Sir John Laws who was so tragically taken from us last year by the pandemic. The case is of course a key text in constitutional law, but for my purposes I am interested in what he said, in his typically dry way, about counsel for the traders, whom I shall not name:
‘… in summarising his arguments I have not sought to give any impression of the passionate rhetoric with which they were delivered. It did not advance his clients’ case. They are entitled to dispassionate justice according to law.’
Of course, he was right. ‘Say it again once more with feeling’ may be excellent advice to an aspiring actor, but it is generally lousy advice to an advocate. This is, I think, a particular problem in England and Wales in one field, namely immigration law, where the profession has to some extent become polarised between those who act for the government and those who, notwithstanding their formal adherence to the cab-rank rule, make it clear in practice that they are only interested in acting for claimants; and are often motivated to do that by a burning belief in the general injustice of government policy towards immigrants and in the iniquity of the government, a belief that sometimes—not often, but sometimes—comes across in the manner and tone of submissions. Now they are of course perfectly entitled to hold that belief and they may even be right, but I think that our public law would be healthier if more members of the bar were as happy acting for one side as for the other, in the joint service of the cause of justice under law. One of the reasons I say that is that the contrary practice encourages the belief that lawyers are to be associated with their clients. That way, of course, lies a grave danger to access to justice, which is why the UN’s Basic Principles on the Role of Lawyers stress that ‘Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.’
There is a good example of the problem in today’s Times newspaper, which reports that students at Magdalen College Oxford have, not for the first time, criticised the President of the College, who is the distinguished QC Dinah Rose, for her role in representing the government of the Cayman Islands arguing in the Privy Council against the existence of a constitutional right to same-sex marriage. She has rightly told them to get lost and has explained about the importance of everyone having representation even if you disagree with them. But I fear that such incidents will only become more common if lawyers taking on public interest cases too readily associate themselves personally with their clients’ causes.
My third point is perhaps related to the problem of excess zeal in a client’s cause. We all as a profession need to be selective and focussed in our arguments. A failure to do this is a bad and worsening problem in my experience. It’s a typical feature of public interest cases, at least ones involving public law, that the claimant has potentially a number of different arguments. But that does not justify raising all of them. And it certainly does not justify, as I’m afraid I’ve frequently seen, raising all of them in parallel, the writer dotting from one to the other as the mood takes. As I said to my junior a few weeks ago in a case where I was acting for the UK government, ‘have you got any idea what they are actually trying to say’? As our Lord Chief Justice said recently in the coronavirus case I mentioned earlier, ‘As often as not, excessively long documents serve to conceal rather than illuminate the essence of the case being advanced.’
I am going to conclude where I started, with a point about the general nature of legal reasoning in public interest litigation. It is that, whatever the case is about, the job of the court is still to look at the text of what the legislature has enacted, or of course what the people have said in their Constitution (as Chief Justice Archie pointed out in a session yesterday, we English lawyers mustn’t forget that Parliamentary supremacy is not the rule in the Caribbean); so the judges’ task is to look at the text (or at the case law precedents), and then to work out what it all means by applying rules of construction, and then to apply that law. And it follows from that, that submissions in public interest cases need, I think, always to keep firmly in mind that the question of what the ‘public interest’ requires is often debatable, and that generally in all of our constitutions the question of what the public interest requires on a particular matter is, subject of course to respect for fundamental rights, a matter for the legislature. And I end with a salutary warning from the Supreme Court in a judgment given only a couple of months ago in a case called SC, which was about welfare benefits. Lord Reed, the President of the Court, said this:
‘challenges to legislation on the ground of discrimination have become increasingly common in the United Kingdom. They are usually brought by campaigning organisations which lobbied unsuccessfully against the measure when it was being considered in Parliament, and then act as solicitors for persons affected by the legislation, or otherwise support legal challenges brought in their names, as a means of continuing their campaign. The favoured ground of challenge is usually article 14 [that’s the European Convention’s article on discrimination], because it is so easy to establish differential treatment of some category of persons, especially if the concept of indirect discrimination is given a wide scope. Since the principle of proportionality confers on the courts a very broad discretionary power, such cases present a risk of undue interference by the courts in the sphere of political choices. That risk can only be avoided if the courts apply the principle in a manner which respects the boundaries between legality and the political process.’
Lord Reed went on to quote a case in the European Court, where two judges had said this:
‘Judicial independence is accepted only if the judiciary refrains from interfering with political processes. If the judicial power is to be independent, the judicial and political spheres have to remain separated.’
Now we can all debate the extent to which in particular cases that separation has been respected, but I would suggest that if you want to bring a successful public interest claim it is very important to ensure that the route map you provide the judge with, to get to the destination that you want the judge to get to, is one that enables the judge who follows it to say with a clear conscience that he or she has adhered faithfully to that principle.
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October 8, 2021