Examination of Witnesses (Questions 66-79)
RT HON
LORD JUSTICE
MAURICE KAY
31 OCTOBER 2006
Q66 Mr Beith: Sir Maurice, welcome to
this unusual joint sitting of the Constitutional Affairs Committee
and the Home Affairs Committee, in which we have been exploring,
for our own benefit in part, the Human Rights Act and the way
in which it has worked in practice. We are very grateful to you
for agreeing to take part in this session. We well understand
the position we place judges in when they appear before parliamentary
committees—indeed, the Constitutional Affairs Committee
now does this on a regular basis—and we quite understand
your very proper reluctance to embark on issues of policy or,
for that matter, to become embroiled in cases which you may have
heard or may yet hear. If at any stage in the questioning you
feel you are being pushed to one of those limits, you have only
to say so and we will fully understand. I think you have an opening
statement you want to give us.
Lord Justice Kay: I have, thank
you, yes. I prepared it yesterday. I think it has been circulated
to you in draft. There is an addition to the sixth of the seven
points that I made, so when I get to page 3, it will be longer
than it is in the copy that you have. Would you like me to begin
with it?
Q67 Mr Beith: Please.
Lord Justice Kay: I have been
given an indication of the topics you would like me to address.
I shall do my best but hope that you will not mind if I approach
them in my own way. I would like to begin with some general observations
which seem to me to be of fundamental significance, even if some
of them are statements of the obvious. First, one of the hallmarks
of a mature democracy is that political power must be exercised
in accordance with the law. The expression "the rule of law"
has a number of meanings but that one is, I hope, beyond dispute.
When the expression was used by Parliament in Section 1 of the
Constitutional Reform Act 2005, I assume that it was being used
in that sense. Secondly, in any mature democracy, the judiciary
has an important role in securing compliance by government and
other public authorities with the law. There is nothing new about
this. Thirdly, long before the Human Rights Act, the courts developed
and expounded the scope of judicial review of the decisions of
public authorities. They did so on a case-by-case basis, the centrepiece
of the modern jurisprudence being the GCHQ case in 1985,
which defined both the principles of modern judicial review and
its limits. It made clear, amongst other things, that there were
considered to be certain judicial no-go areas, including matters
of national security and foreign relations. Indeed, that judicial
self-restraint still exists at common law, as can be seen, for
example, in the rejection in late 2002 of the application by CND
for judicial review of the lawfulness or otherwise of the then
contemplated invasion of Iraq. To some extent, by enacting the
Human Rights Act, Parliament has drawn us into new areas. Fourthly,
the Human Rights Act requires—and I emphasize that word—judges
to approach a great deal of public law litigation in new ways.
It requires us, if at all possible, to construe domestic legislation
compatibly with Convention rights. It requires us to take account
of Strasbourg case law. It enables, and, by implication, expects
us to declare domestic legislation to be incompatible with Convention
rights although, by its elegant approach, it does not empower
us to strike down incompatible primary legislation. It also imposes
on all public authorities the duty to act without contravention
of the Convention rights of persons affected by their decisions
and this, in turn, requires the courts to give effect to Convention
rights in domestic litigation. All this we do, not because of
the arrogation of power to ourselves but because of the obligations
imposed on us by Parliament through the Human Rights Act. Fifthly,
all this is leading the courts into new territory. Thus, in the
case of A & Others, the Belmarsh detainees, the courts
had to consider, amongst other things, the lawfulness of a derogation
from this country's international obligations. The Convention
test is one of "a public emergency threatening the life of
the nation", the very sort of issue in which, by reference
to the GCHQ case, judicial angels traditionally feared
to tread. Now, however, as a result of the Human Rights Act and
the anti-terrorism legislation, Parliament has required—that
word again—the judiciary to engage with that test. I shall
return to the subject of new territory when I deal with proportionality
later. Sixthly, in this and other respects, the courts are doing
no more and no less than carrying out their constitutional function
of interpreting and applying the law—in this case, the law
enacted by Parliament. It is at this point that I have an addition
to the draft which was circulated in advance. I do not know what
Lord Falconer will be saying to you later this afternoon. However,
I anticipate that it may resemble what he said in an excellent
lecture which he gave in Australia last month under the title
"The Role of Judges in a Modern Democracy". It is a
valuable contribution to the subject, and I and other judges would
agree with most of it. Where I disagree with him is in his characterisation
of judicial power in this area as an exercise of discretion. Whilst
some judicial decision-making is discretionary, decision-making
in most of the controversial cases on human rights is not. For
example, whether a domestic statute is Convention-compliant, whether
the terms of a control order amount to a lawful restriction of
liberty or an unlawful deprivation of liberty, whether detention
without trial of foreign terrorism suspects is disproportionate
and/or discriminatory, whether the denial of asylum support to
an applicant for asylum pending the determination of his claim
amounts to inhuman and degrading treatment, are all issues requiring
judicial decision by the application of the law to the facts of
the case. That is a matter of judgment according to the law, not
discretion. This is not just a lawyer's semantic quibble. The
suggestion or implication that discretion is in play when in fact
it is not tends to fuel the misconception that judges are somehow
choosing to adopt an anti-Government line when, by being a little
more "discreet", they could decide the same case more
favourably to the Government. That is not so and, accordingly,
I respectfully take issue with Lord Falconer's use of the word
"discretion". Seventhly, the courts are not adopting
a gung-ho approach, so when considering the question of "a
public emergency threatening the life of the nation" in A,
the majority of the Judicial Committee of the House of Lords made
it clear that, whilst the legislation requires the courts to review
a derogation on such a subject involving national security, they
will show great deference to the political decision-makers. Similarly,
in immigration law, when considering whether removal from the
United Kingdom will contravene a person's rights under Article
8, the issue of proportionality is approached on the basis that
our domestic law is the primary evidence of what is proportionate
and it is only in "truly exceptional" cases that a person
will be able to rely successfully on Article 8. One sees a similar
approach in cases where successful reliance on other Articles
has been limited to "flagrant" breaches. I believe these
examples—and there are many others—are more illustrative
of self-restraint on the part of the judiciary than the sort of
militant activism that is sometimes caricatured in the media.
Much of what I wanted to say and to emphasise is contained in
those seven general observations. I hope that they also deal with
some of the questions you have raised. I shall now try to answer
some of them in a little more detail. Proportionality is an issue
raised by you. Domestic judicial review has traditionally been
limited to considerations of illegality, irrationality and procedural
impropriety. The interference with Convention rights often has
to be tested for its proportionality. Although the application
of the domestic test of irrationality (or the Wednesbury
test, as it is often called) will often produce the same result
as the proportionality test, the tests are not the same. Proportionality
can require the judge to come to his own view of, for example,
the least intrusive solution rather than simply asking whether
a decision-maker has reached one of a number of permissible decisions.
This is a more interventionist approach. It is what the law requires.
It was explained by Lord Steyn in the Daly case but it
has taken time for everybody to adjust to it. So, for example,
immigration adjudicators continued to apply the Wednesbury
test to decisions of the Home Secretary in Article 8 cases before
the House of Lords and the Court of Appeal reminded them to make
their own decisions, albeit against the "truly exceptional"
criterion. The proportionality test calls for a novel judicial
technique but its demands vary according to the subject matter.
We recognise those areas which, in Lord Bingham's words, lie more
at the political than the judicial end of the spectrum. Thus,
whilst we are deferential novices on issues of national security,
we can draw on centuries of experience in relation to the protection
of individual liberty. Next, the judicialisation of decision-making.
Section 6 of the Human Rights Act makes it unlawful for a public
authority, including a court or tribunal, to act in a way which
is incompatible with a Convention right. To the extent that the
decisions of public officials are now reviewable not only on domestic
public law grounds but also by reference to Convention rights,
decision-makers are more constrained. Decisions are more susceptible
to litigation. However, it cannot be said that the courts have
been inundated with arguable human rights cases. In many cases,
human rights grounds are simply added to traditional grounds and
quite often both succeed or both fail. Statistics are distorted
by the fact that large numbers of unrepresented litigants often
think, quite unrealistically, that the Human Rights Act is the
answer to all their prayers. On the other hand, there are undoubtedly
areas in which the Act has transformed decision-making. A good
example is in relation to parole and minimum terms of imprisonment
but the previous politicisation of decision-making in that area
was never justifiable by international standards or elementary
considerations of the separation of powers. Unfortunately, almost
any issue relating to the sentencing and release of prisoners
attracts more heat than light. If decision-makers have sometimes
been over-anxious about the impact of the Human Rights Act upon
their decisions, I do not think that actual judicial decisions
can be said to have caused that over-anxiety, if indeed it exists.
Privacy: you have asked me to comment on the relationship between
privacy in Article 8 and freedom of expression in Article 10.
That the Act is having an impact is obvious. It was bound to,
in view of the previous under-development of the English law of
privacy. This is an area in which I have little experience. Obviously,
it is a matter of balance. Both interests have had their successes.
Judges are well versed in the balancing of competing interests.
At the moment, I have no more to say on this subject. I would
like to complete this opening statement with two unrelated observations.
The first is that the legal landscape has been significantly changed
by the Human Rights Act. The judiciary received admirable training
in preparation for their work under the Act. Even so, the work
involves much that is novel and difficult. Perhaps the difficulties
can be appreciated by noting the unusual number of cases in which
the House of Lords has been divided or has overturned decisions
of the Court of Appeal. There are many marginal cases. I believe
that history will give credit to the judiciary for the careful
and restrained way in which it has dealt with the legislation.
But for the events of 9/11, the process would probably have been
more leisurely and gradual. However, subsequent legislation had
obvious and dramatic human rights implications and we have had
to adapt quickly in very difficult circumstances. To those who
are critical of the decisions in the leading cases I pose the
question: do you consider it likely that the decisions would have
been different if the issues had been litigated in Strasbourg
rather than in our domestic courts? Secondly, and finally, I would
like to pay tribute to the way in which the legal profession has
responded to the challenge. The expertise of many of those who
represent claimants and defendants has been a great resource.
It should also be remembered that much of the litigation is financed
on both sides by public funds. I am not alone in regretting the
erosion of Legal Aid. However, it is a matter for satisfaction
that, notwithstanding the cuts, in this country the state still
provides more funding for litigation against central government
and other public authorities than is available in any comparable
country. That is how the professional expertise has been able
to develop and to assist the courts in cutting-edge cases.
Q68 Mr Beith: Thank you very much
indeed for that very clear and quite forthright opening statement.
If I can just put one question to you to start with, how, as a
judge, would you set out the answer to the conundrum as it is
put by Ministers sometimes and frequently in the media that in
some way the rights of a suspected terrorist are being placed
above the rights of the public to safety because of the operation
of the Act? I put that in very general terms but really, what
I am interested in is how the legal answer to that is best defined.
Lord Justice Kay: The answer really
requires a perusal of the decisions in the two or three leading
cases which have dealt with that issue. On any basis, it is an
extremely difficult issue. If one looks at the Belmarsh detainees
case, one sees that on the first issue, has the threshold been
crossed to enable the Government to derogate from the Convention,
there is on the part of the majority of the law lords a total
sympathy with the predicament of the Government and a substantial
deference to their interpretation of the need. When it comes to
the second stage, derogation is permissible but what about this
particular enactment and the way in which it is being used, it
seems to me there were factors in play in connection with the
detention without trial of foreign—emphasize foreign—terrorist
suspects, which led to what I believe was an inevitable judicial
conclusion both in relation to discrimination and in relation
to proportionality. It is not a case of putting terrorists' rights
above something else; it is a question of analysing in detail
the points that are in play and coming to a decision against the
background of the law, in this case the law as set out in the
European Convention on Human Rights. It does not help, I think,
in terms of presentation if one's recollection of the case is
a snippet from one law lord or another which may have been individualised
and was not in reality the reason for the decision of the majority.
It seems to me really, simply as an informed person, reading in
the media the coverage of what went on in the A case, that
the media were very often more interested in what Lord Hoffmann
said at the end of his speech, expressing an opinion about threats
to the security of the nation, than they were about what Lord
Bingham and the majority said about the true reason underlying
the decision, because it is a fact that Lord Hoffmann was in fact
deciding the case on a slightly different basis from all the others,
but that is what caught the media eye, perhaps because of Lord
Hoffmann's particular gift of self-expression. That is my answer
as far as the Belmarsh case is concerned, that there were technical,
subtle, complex issues in play which received careful, erudite
analysis and I think if anybody reads the speeches of the law
lords, they will see that it is not a case of predisposition,
it is not a case of favouring one assumption or another; it is
a case of careful legal analysis. Subsequently, when they have
dealt, for example, with the case of admissibility of evidence
procured abroad by torture, they decided that case both on human
rights grounds and domestic law. The decision would have been
exactly the same if we had never enacted the Human Rights Act;
in fact, the more robust passages in the law lords' judgments
relate to the common law rather than the Human Rights Act. When
one comes to the subsequent control orders case, I am not sure
to what extent this is still ongoing litigation. It has been to
the Court of Appeal; I do not know whether it is on the way to
the House of Lords, but that, I think, is probably a case where
it might have been a more marginal decision for a judge to have
to make, for this reason: the central issue is whether the terms
of the particular control orders amounted to simply a restriction
of the liberty of the people who were being controlled or whether
they were a deprivation of their liberty, such was the quantum
of the restrictions. That is an evaluative decision. It is not
one I had to make. One knows from the Strasbourg jurisprudence
that it provided a steer at both ends of the spectrum, but it
was relatively unhelpful in the middle ground, and this case may
have been said to be in the middle ground. It was carefully resolved
by one judge in the High Court, by three judges in the Court of
Appeal and they all came to the same conclusion. I would again
say that they did so on the basis of detailed analysis of the
facts in the case and the legal provisions which they had to apply.
Q69 Mr Streeter: You said in your
evidence "We recognise those areas which, in Lord Bingham's
words, lie more at the political than the judicial end of the
spectrum." Of course, in your case I accept that is completely
the case, but is it not also the case that there are some members
of the bench who actually have very little respect for the political
will of the people of this country as expressed at the ballot
box and are itching to give Parliament a bloody nose whenever
they can? Do you really think that everyone has recognised these
areas and does indulge in judicial deference?
Lord Justice Kay: What I do not
recognise is the member of the bench or members of the bench that
you are seeking there to portray. I have never met a judge who
is itching to get at Parliament or the Government, whether this
Government or any previous Government. The answer is simply no.
As far as this kind of work is concerned, the first instance decision
of public law cases in our jurisdiction is handled almost entirely
by the Administrative Court. The Administrative Court is staffed
by hand-picked judges from among the High Court judges, and mainly
from one particular division of the High Court judges. They are
selected because they are thought to be people with the expertise
and the stature and the necessary feel for the interface of government
and the judiciary such that they can be trusted with that kind
of work. I would personally resist any suggestion that, either
in their selection or in the discharge of their duties, they act
in the kind of way that you are there describing.
Q70 Jeremy Wright: Can I ask you
about declarations of incompatibility? Professor Klug, who sits
behind you, spoke to us earlier on this morning and I think you
and she were in agreement that there is no strike-down power for
the judiciary on primary legislation, but her analysis was that
the matter might still be litigated in Strasbourg even if it could
not be litigated here. The parties may then go on to Strasbourg
to argue about particular primary legislation. The argument for
the Human Rights Act was that it would bring rights home, that
it would incorporate that area of rights law into British law
so that people would not have to go to Strasbourg. Is there a
flaw in the system of declarations of incompatibility and what,
in your view, are the merits of declarations of incompatibility?
Lord Justice Kay: I think the
conceptual apparatus within which they may be made was ingenious
and went as far as it possibly could to square the circle of the
Convention and parliamentary sovereignty. So far, there have been
relatively few declarations of incompatibility. The statutory
consequence of a declaration is that it may or may not lead to
amending legislation. I rather gather from Lord Falconer's Australian
lecture that he is entirely satisfied with the way in which declarations
of incompatibility are working and the way in which Parliament
is responding when declarations are made. They are, as it turns
out, a relatively small part of the impact of the Human Rights
Act.
Q71 Mr Beith: I wonder if you could
just explain that statement, because you imply by that that much
of its impact is extra-judicial, in which case it is slightly
worrying.
Lord Justice Kay: No, I did not
mean to give that impression. Of the many cases that have been
decided under the Human Rights Act, a handful concern declarations
of incompatibility. I cannot remember what the present figure
but I think it is still at around eight, nine or 10 such cases
where such declarations have been made, and a number of those
have been small, relatively technical, procedural points that
would not even raise a half-inch column space on page 8 of a newspaper.
Although they have arisen in one or two of the big cases as well,
they are not the daily feedstuff of the judicial use of the Human
Rights Act. We decide cases every day of the week applying Convention
law without the need to make a declaration of incompatibility.
It is very much the exception rather than the rule and, when we
have made the declarations, they have, so far as I know, always
been graciously received by the Government and Parliament and
amendments have been made. It is true that the matters can still
be litigated in Strasbourg by aggrieved people. I have a view
about one aspect of what you said and that is to do with the presentation
of the Human Rights Act when it was in the form of a bill and
when it was going through Parliament. It was to some extent presented
as merely relocating the place of litigation and therefore giving
easier access, saving people the journey to Strasbourg and so
on. Whilst it has that advantage, very conspicuous advantage,
the Human Rights Act was about far more than that, and it did
far more, clearly, and, it would seem to me, inevitably intentionally,
in a considered way, to give new tasks to our judges which they
have not had before in quite that form. The whole idea that it
was a rather cosmetic, logistical thing without any potential
to—I will not say rock the constitutional boat but at least
cause the occasional ripple I think was perhaps not a very full
idea.
Q72 Mr Denham: In the Canberra lecture
that the Lord Chancellor gave that you have referred to, he set
out the principle that it was the job of the executive to set
out the strategy for combating terrorism, that it was the job
of the courts to determine whether individual actions were lawful.
In the three elements of terrorism cases that you have touched
on yourself, Belmarsh detention, deportation and control orders,
the courts by a series of separate leading decisions effectively
removed three planks of the Government's counter-terrorism strategy,
leaving it with a relatively small space for manoeuvre. Is that
a problem if we actually start from the principle that it is the
executive's job to determine the counter-terrorism strategy, if
the courts, taking quite separate decisions, actually unpick what
the Government regarded as key elements in that strategy, even
though each of those may be legally absolutely the right decision?
Lord Justice Kay: The answer is
that, the torture one apart, if we were living post 9/11 but without
the Human Rights Act, there would not have been judicial decisions
of the kind that you are referring to in those crucial cases.
There are judicial decisions to that effect now because of the
Human Rights Act. Question: did the law lords in two of them and
the Court of Appeal in the other take an eccentric or expansionist
or particularly radical view of the Human Rights Act and the Convention?
Answer: in my judgment, no. They took what was a fairly predictably
straightforward view of that Act and the Convention. That is why,
when this question is posed, I pose the question rhetorically
in reply that I did in my short presentation. Do you think for
one moment, if the matter had been litigated in Strasbourg, that
the Belmarsh case would have been decided any differently? Personally,
I would be astonished if it had been. Ditto the torture case.
Q73 Mr Denham: Some of us who are
parliamentarians who took part in consideration of the legislation
that underlay the Belmarsh decision and then the control orders
decision may have had the expectation that the fact that Parliament
had considered these matters very seriously and at great length
would have been given perhaps more weight than it appeared to
have been by the courts when they came to determine these matters.
Were parliamentarians unrealistic in the amount of weight that
they expected the courts to give to a decision where not only
had the government and the executive taken a decision but Parliament
itself had agonised very long and hard over these issues?
Lord Justice Kay: We are talking
about questions of law ultimately and the best analysts of law
are people who are trained in law. My suspicion—I put it
no higher than that—is that parliamentary expectations might
well have been pitched too high, at least as far as the first
round was concerned. Certainly I think that in the torture case,
it was never the case that Parliament...
Q74 Mr Denham: That is the one where
Parliament has not actually legislated.
Lord Justice Kay: So we can leave
that one aside. The control orders one I would say, as I said
before, is a little more marginal. Restrictions come at a point
on the continuum where, at the very least, if deployed in that
particular way, they were at risk of that particular result. It
is not, in my view, as clear a case as the other cases we have
talked about but I say no more in case the final word has yet
to be spoken by the House of Lords.
Q75 Dr Whitehead: Could I raise some
thoughts about your thoughts on proportionality. The points I
think you made very firmly in your remarks relate to the idea
that, as far as proportionality is concerned, by which I assume
we are talking about proportionality in terms of qualified rights
which can be restricted, you have pointed out that a judge has
to come to his own view of the least intrusive solution, a more
interventionist approach, and you have stated that that calls
for a novel judicial technique. My concern is that perhaps that
might be recast in terms of not just a novel judicial technique
in terms of having to come to one's own view but also come to
a view about one of the two sides against which proportionality
has to be judged, namely the rights or the interests of society.
I note that you have also stated that judges, you say, can draw
on centuries of experience in relation to protection of individual
liberty. The missing dots at the end, as it were, might suggest
the protection of individual liberty against the state, but the
interests of the community to some extent are defined by the state,
so is it not the case that actually, there is one area of the
two poles against which proportionality might be judged which
is not defined whereas there is one other area that is defined
and that in itself gives an additional area of problem as far
as judicial interpretation is concerned?
Lord Justice Kay: It is a balancing
exercise, and it is a balancing exercise where one considers the
full range of consequences for the state, for society, for the
individual. I see no difficulty in that as a task. There is, I
suppose, a natural reaction on the part of government to be disappointed
when the striking of the balance is not precisely where they would
have hoped that it might be. That part is not particularly difficult
to do, provided that all things are properly taken into account.
One thing you can be sure of, as I address at the end of my opening
statement: in the big cases the level of legal representation
on both sides is so abundantly talented that every conceivable
matter is addressed and considered before a decision is made.
Q76 Dr Whitehead: Is it not the case
though that what one might define as the rights of the community
are themselves very ill-defined and therefore are subject to an
additional or necessary interpretation over and above the actual
interpretation that, as you have pointed out, is the decision
that the judge is required to take?
Lord Justice Kay: I do not know
what to give you as an example. Perhaps from immigration. There
is a deep, established acceptance that the state has an interest
in the control of immigration and in keeping it fair. There is
an acknowledgement that if you deport somebody and thereby split
a family, that person has Article 8 rights that are in play but,
for the reasons that I mention briefly in the paper, we know how
the state has prioritised the striking of the balance by the provisions
of the immigration legislation and the immigration rules and the
policy statements that are made. They serve as a starting point.
That is why the courts in that situation will treat them not just
as a starting point but go to the other end and say it requires
a truly exceptional case for a deportation to be stopped in the
private interest of the person whose Article 8 right has been
engaged. I think that rather illustrates the balance and the way
in which courts go about identifying the factors and weighing
them. It is difficult to superimpose on that some additional unformulated
community interest over and above the specific interests that
have to be identified for carrying out the proportionality exercise.
It may be expressed in vague language because it is universal,
it applies in all situations, but when it has to be applied in
a particular case, it is very necessary to see what the particular
aim is of the particular provision or decision, whether that is
in accordance with the law, whether it is a legitimate aim, all
that on the side of the government, so to speak, and what the
particular interest is that is being affected or potentially affected
by the policy or its operation. It is only when you get down to
the individual case, I think, that you can be sufficiently specific
about the competing interests to enable you to make the decision
that strikes the balance. As it happens, I would have thought
that, standing back, looking at the thousands of cases that have
been decided under the Human Rights Act where proportionality
is in issue, in the overwhelming majority the individual has lost,
not won.
Q77 James Brokenshire: Lord Justice
Kay, you have made clear in your statement that you take issue
with the Lord Chancellor's interpretation or reflection on the
approach of the judiciary when examining this particular area
in suggesting it is an exercise of discretion. Obviously, in the
session thus far we have heard of the different approach that
has been taken, albeit that you would characterise that more as
interventionist or a change in emphasis of the law-making style
and the application of the law in that particular manner. In raising
it, you clearly see this as a matter of concern. To what extent
should it be a concern for us and what do you see as the implications
of that apparent disconnect or misunderstanding of the approach
the judiciary has actually been taking?
Lord Justice Kay: First of all,
I do not want to be misunderstood about any area of disagreement
I have with the Lord Chancellor. It arises solely about his use
of the word "discretion" repeatedly in that lecture.
So far as I know, the Lord Chancellor is not critical of any of
the judicial decisions that have actually been made. I am simply
expressing a different view about the conceptual and analytical
tools that we use in our decision-making process. Could you reformulate
the second part of the question or the main part of the question,
because I do not think I followed it.
Q78 James Brokenshire: The aspect
that that leads on to is that if there is this misunderstanding,
if I can put it in those terms, between the judicial tools that
you are using and the Lord Chancellor's interpretation of that
in his comments on the word "discretion", do you see
that as a point of concern and, if so, what would the implications
of that be?
Lord Justice Kay: Obviously, as
judges, we want people to evaluate our decisions on the basis
upon which we have constructed them. If one introduces the language
of "discretion", it makes it sound as though there was
really a rather wider choice as to what the outcome of the case
should have been, and "If only the judges had paused for
a few moments longer, they would have found a way of agreeing
with us rather than disagreeing with us." There is a danger
if it is presented in that way, if that is not the basis upon
which a case is decided. If there is one message that I think
all judges would wish to get across in these cases, very difficult
and complex as they are, it is that we are applying the law, and
in particular the law enacted by Parliament, and we are not engaged
on some discretionary frolic of our own, pitching things where
we think they ought to be pitched.
Q79 Mr Beith: But is not judicial
deference a form of discretion in that you are making the decision—as
you said, judges do not know a lot about national security, you
do know about liberty, so you will back off slightly when the
state is making a judgment about national security. Is that not
a form of discretion?
Lord Justice Kay: I think it is
only discretion in the sense that some people use almost all decision-making
as an exercise of discretion. It is a problem judges have all
the time, not just with the Human Rights Act and in public law
cases. Lawyers are for ever addressing courts in private law cases
on the basis of the judge has a discretion for this, that and
the other. Sometimes we do, but very often when they are talking
about discretion it is not a discretion at all; it is a question
of identifying the law and applying it to the facts. There is
a discretion in the Human Rights Act. There is a discretion over,
for example, declarations of incompatibility. There is no discretion
in deciding whether or not a piece of legislation is compliant
and compatible; that is a matter of law, but if you then have
to decide whether to go on to make a declaration of incompatibility,
there is a discretion because the Act says "the court may"
and that is a discretionary matter. I certainly have sat on one
case where that was the only issue in the case. The Government
was accepting incompatibility; it was inviting the court not to
make the declaration on the basis that they were attending to
it anyway and there was no need.
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