The Onward March of Declaratory Relief?

A hundred-odd years ago, Farwell LJ noted that the emerging concept of declaratory relief can provide “a speedy and easy access to the Courts for any of His Majesty’s subjects who have any real cause of complaint against the exercise of statutory powers by Government departments and Government officials…” (Dyson v Attorney-General (No. 1) [1911] 1 KB 410, at p. 423). Proceeding by declaration can be “highly convenient” (ibid. at p. 417), and indeed can “guide” public bodies’ “action in the future” (Dyson v Attorney General (No. 2) [1912] 1 Ch 158, at p. 166). And, of course, two of the most celebrated administrative law decisions of the 20th century, Ridge v Baldwin and Anisminic v Foreign Compensation Commission, were actions for declarations.

Two recent examples, one British, one from New Zealand, suggest that the intensity of the onward march of declaratory relief shows no signs of abating. Here in Britain, the government is fighting to prevent the Court of Justice of the European Union from delivering an advisory opinion on whether it is possible to revoke the Article 50 notification that will cause by operation of law Britain’s departure from the EU on March 29, 2019.

Explaining why the British government is so stubborn in its refusal to countenance the possibility that the Article 50 notification might be revocable, even in the face of an evidently disastrous approach to the exit negotiations, would take another, much longer blog. But stubborn they are and, Scotland’s highest court — the Inner House of the Court of Session — having referred the question of the revocability of the Article 50 notice to the Court of Justice, and then having refused to give the government permission to appeal to the Supreme Court, the government is now asking the Supreme Court to give it permission to appeal.

The underlying issue arises from the decision of the Inner House in Wightman v Secretary of State for Exiting the European Union [2018] CSIH 62. At first instance, the Outer House had refused to make a reference to the Court of Justice, reasoning that the issue was entirely academic (given that the UK government’s stated and unbending policy is not to revoke or even consider revoking the Article 50 notification) and an interference with proceedings in parliament in violation of the principle of parliamentary privilege. The Inner House took a different view on both points.

Lord Carloway held that the matter was not academic, irrespective of the UK government’s policy position:

It is clear, in terms of the European Union (Withdrawal) Act 2018, that MPs will be required to vote on whether to ratify any agreement between the UK Government and the EU Council. If no other proposal is proffered, a vote against ratification will result in the UK’s departure from the EU on 29 March 2019; a date which is looming up. It seems neither academic nor premature to ask whether it is legally competent to revoke the notification and thus to remain in the EU. The matter is uncertain in that it is the subject of a dispute; as this litigation perhaps demonstrates. The answer will have the effect of clarifying the options open to MPs in the lead up to what is now an inevitable vote (at para. 29. See also at para. 37 (Lord Menzies) and paras. 58-59 (Lord Drummond Young)).

It followed also that there would be no interference with parliamentary privilege, because the use to which the declaration would be put would be “entirely a matter” for Parliament (at para. 30). As Lord Drummond Young put it, the courts would “simply” be making a “statement of the existing law”, well within their usual “constitutional function” (at para. 65).

Here, the boundaries of declaratory relief are being very broadly drawn (admittedly, as a matter of Scots law only). No facts are in dispute; no rights or interests turn on the resolution of the question; and no legal consequences follow from the issuing of a declaration. Were Parliament somehow to direct the UK government to revoke Article 50 and meet resistance on the ground that the notification was irrevocable, the question would no longer be academic. But for the Inner House, declaratory relief would be appropriate in any event, based on the desirability of ensuring that MPs are fully informed of the suite of options at their disposal when voting to ratify an international treaty.

That the boundaries have been broadly drawn may assist the UK government in making the difficult argument that the Supreme Court should intervene. The argument is a difficult one to make because the Supreme Court can only give permission to appeal a “final judgment” of the Inner House, one that disposes of all the matters in dispute (Court of Session Act 1988, s. 40). Doubtless, the UK government will argue that the Inner House’s decision to make a reference to the Court of Justice was a “final judgment”, inasmuch as once the reference answer has been received, the Inner House will have nothing left to do but “declare” that the Court of Justice has answered the question referred to it. To use the words of Lord Drummond Young (concurring), the answers given by the Court of Justice would be “functionally equivalent” to declaratory relief, because that body is the “authoritative” expositor of EU law (at para. 69).

I think, however, that the decision to make a reference is not a “final judgment”. As a matter of pure form, it is not a “final judgment”, because the Scottish courts will have to formally receive the Court of Justice’s answer and declare it.

Moreover, the Inner House referred to giving an “appropriate declarator” (at para. 31). It may be that the Court of Justice’s answer is that the Article 50 notification may be revoked but only if Britain acts in good faith and complies with its domestic constitutional requirements (mirroring the reference made to this concept in Article 50). The Court of Justice is unlikely to explain what such qualifications on the revocability of Article 50 mean in the context of UK constitutional law. Translating EU-law qualifications into UK law would be a task for the domestic courts in granting the “appropriate” declaratory relief.

Finally, the Inner House suggested that it will “remit” the matter to the Outer House once the reference answer has been received from the Court of Justice (at para. 33). This raises the prospect of the Outer House ultimately exercising its discretion to refuse to grant the declaratory relief sought by the petitioners. For example, if a vote in Parliament has already happened by that time, the remaining EU member states have agreed to accept a revocation of the Article 50 notification by the UK, or the UK has already left the EU, the case would be entirely academic. These are not necessarily plausible scenarios but they are certainly possible scenarios: “intentions [and other things] may change for a wide range of reasons” (at para. 57, per Lord Drummond Young). As such, these scenarios underscore that there has not yet been a “final judgment” in this matter, whatever one thinks about the merits of the Inner House’s decision in Wightman.

The New Zealand example is Attorney General v Taylor [2018] NZSC 104. At issue here was New Zealand’s legislated blanket-ban on prisoner voting. It was accepted that the ban is inconsistent with the New Zealand Bill of Rights Act 1990, s. 12 of which guarantees the right to vote. The only question was whether the courts can grant a formal declaration of inconsistency in such circumstances. There is no such power in the 1990 Act, which is underpinned by orthodox understandings of the sovereignty and supremacy of Parliament. Section 4, which “contemplates that Parliament will pass inconsistent legislation and that it will be effective” (at para. 133, per William Young and O’Regan JJ.), is an exemplar:

No court shall, in relation to any enactment (whether passed or made
before or after the commencement of this Bill of Rights), —
(a) hold any provision of the enac tment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b) decline to apply any provision of the enactment —
by reason only that the provision is inconsistent with any provision of this Bill of Rights.

By a 3-2 majority, the Supreme Court held that the courts have a power to issue declarations of inconsistency. From previous case law, Glazebrooke and Ellen France JJ. deduced a principle that “an effective remedy should be available for a breach of the Bill of Rights and the courts can draw upon the ordinary range of remedies to provide such a remedy” (at para. 38. But see the dissent at para. 125). Far from being in tension with the orthodoxy underpinning the Bill of Rights, the text and purpose of the legislation supported the view that courts could issue declarations of inconsistency (at para. 50). In her concurring judgment, Elias CJ noted that the statute giving the New Zealand courts jurisdiction to grant declaratory relief (the Declaratory Judgments Act 1908) provides for “binding declarations of right”, regardless of whether “consequential relief” has been claimed or could be granted (though, puzzlingly, she describes this as part of the “inherent jurisdiction” of the courts (at para. 118), notwithstanding its statutory basis).

However, to the argument that issuing a declaration would be entirely academic, in a context in which the meaning and effect of the ban on prisoner voting was uncontested, the majority offered a comparatively weak set of ripostes: a declaration “provides formal confirmation they are persons who are disqualified to vote by a provision inconsistent with their rights” (at para. 53); it facilitates the making of a complaint under the ICCPR (at para. 55); it serves the purpose of “marking and upholding the value and importance of the right” (at para. 56); and it gives “some protection against any attempt to re-litigate the question of consistency with the Bill of Rights (at para. 58). These consequences seem largely symbolic, however.

As William Young and O’Regan JJ. pointed out in dissent in the other jurisdictions where declarations of inconsistency or incompatibility are available, “granting a declaration has legal consequences”, triggering either an obligation on the executive to report the judicial decision to the legislature or the power to remedy the inconsistency or incompatibility (at para. 127). The most that could be said here was that a declaration might support a complaint under the ICCPR but this was of “relatively minor consequence” given that an affected individual could make such a complaint with or without a judicial decision in his or her favour (at para. 139). For the dissenters, the issue was whether the courts “should fashion a civil remedy” (at para. 131) and there were sound reasons of principle not to innovate:

a declaration would simply hang in the air and possibly create some sort of moral obligation on the part of the legislature to reconsider. That in turn carries the risk that a formal order of the court may be simply ignored, with the consequential danger of the erosion of respect for the integrity of the law and the institutional standing of the judiciary (at para. 134).

This rhetoric is perhaps on the strong side, but there is no doubt that the majority’s view of declaratory relief — almost entirely untethered to any underlying facts — is very broad indeed, so much so that the declaration in this case borders on an advisory opinion.

Declaratory relief thus continues its onward march. It has travelled a long way from Dyson, where it was given in respect of “statutory powers” apt to interfere with individuals’ rights and interests. The judges in both of these cases have taken an extremely broad view of the circumstances in which a declaration would be appropriate. No doubt, these cases will be prominent in future attempts to convince judges to take declaratory relief a few more steps further forward.

This content has been updated on November 12, 2018 at 17:53.