Twenty-three years ago the writer, broadcaster, (and now) QC honoris causa and Gray’s Inn Bencher Joshua Rozenberg published Trial of Strength: the Battle Between the Government and the Judiciary Over Who Makes the Laws of Britain. Since
then, the Human Rights Act 1998 has changed the criteria and introduced the added complication of whether or not to nudge ministers along by making a declaration of incompatibility. But the ‘battle’ shows little sign of being resolved.
Once more, Joshua Rozenberg has a lot to say that is well worth reading.
With his customary lucidness, Joshua illustrates his points with a plethora of cases which demonstrate what the courts now have to deal with as litigants turn to them to change not only the law but society’s norms. Assisted suicide, heterosexual
civil partnerships, marital rape, industrial tribunal fees, the right of celebrities to privacy etc. ‘What the judges tend not to spell out,’ he writes, ‘is that changing the law is not, for them, a risk-free process. Nobody suggests
that they would lose their jobs if they got it wrong. But an out-of-touch decision can – and does – damage public confidence in the judiciary.’ He states at the same time the boundaries – ‘The judges are not the public’s
elected representatives and it is not for them to make political decisions’ – but at the end, ‘Far from being enemies of the people, judges are just about the only friends we have.’
The book is written for both lay and legal audiences. The first chapter is entitled ‘New Readers Start Here’ and explains the judiciary’s role and judicial review within the constitution. Lawyers should read it anyway not least as the
ground rules of where Joshua is coming from. Sometimes Joshua sets out the facts but before explaining the eventual judgment asks the reader what they would have decided. This can be a fun challenge but it worked least well in the Parole Board case
of John Worboys. One recalls how it was not explained to the public at the time who the parties to the proceedings were and how the board went about its business. They were left no wiser when the Mayor of London decided it was his business and some
if not many wondered why the panel hadn’t just Googled Worboys and taken it from there.
Inevitably, the first cases analysed are ‘Miller 1 and 2’. The Daily Mail headline of 4 November 2016 which gives the book its title was the reaction to the Divisional Court judgment that it was Parliament rather
than the Executive who were empowered to trigger Article 50. What horrified lawyers was the repeated refusal of the Lord Chancellor, Liz Truss MP, to say in this country that one did not attack the judges personally and (hopefully) one did not lie
about what a judgment actually says. Joshua quotes an understanding Lord Neuberger who thought there were ‘mitigating circumstances’ here – Ms Truss ‘had no experience of the rule of law and of the judiciary’. If so,
she was not a quick learner. At the same time, no one in the Cabinet including the Prime Minister publicly suggested that they would have behaved differently.
Miller 2, which set off the manifesto promise to reform judicial review, is still with us. It was hardly emphasised outside court that the Supreme Court’s decision was in part a function of the Prime Minister’s failure to inform the
court of why Parliament had been prorogued. The Attorney General, Geoffrey Cox QC MP said the government respected the judgment. That, however, did not mean that the House of Commons should be there. Since they had disobeyed the government’s
wish to have a general election, he told them: ‘This Parliament is a dead Parliament. It should no longer sit. It has no moral right to sit on these green Benches.’
On 27 January 2020, Suella Braverman MP wrote in Conservative Home: ‘People we elect must take back control from people we don’t. Who include the judges.’ The task was not just to restore sovereignty for Parliament
from the EU, Parliament must ‘retrieve power ceded’ to the courts. The political has been captured by the legal.’ Seventeen days later she became Attorney General.