The government and the judges

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Zealots bent on upsetting the constitutional applecart or the only friends we have? And what is the alternative? Thomas Grant QC takes a look at the Independent Review of Administrative Law, its context and the charges against the senior judiciary

Many readers will remember Professor John Griffiths’ famous book The Politics of the Judiciary, first published in 1977. Griffiths’ argument was that the judiciary, drawn so he claimed from a narrow and privileged stratum of society, was making political decisions which reflected its predominantly conservative worldview.

Forty years on, the pendulum has swung decisively. The talk in the corridors of power, and even perhaps in the public houses of middle England, is now of illegitimate activism by a liberal judicial cabal intent on stymieing ‘the will of the people’ as embodied in the decisions of government ministers. We all know that this agitation was sparked by the decisions of the Divisional and Supreme Court in Miller (No 1), inflamed three years later by the Supreme Court’s judgment in Miller (No 2), and has been given intellectual heft (albeit, on analysis, not wholehearted support) by Lord Sumption’s widely heard and read 2019 Reith lectures Trials of the State.

In 2015 think-tank Policy Exchange created the Judicial Power Project (JPP), which states its purpose on its website as follows: ‘Judicial overreach increasingly threatens the rule of law and effective, democratic government. The project aims to address this problem – restoring balance to the Westminster constitution – by articulating the good sense of separating judicial and political authority.’

Professor John Finnis QC, in two papers available on the JPP’s website, excoriated the unanimous decision of 11 Supreme Court judges in Miller (No 2) as a constitutional heresy. Lord Faulks QC, previously a Justice Minister under David Cameron, wrote a commendatory preface to Finnis’ second commentary, in which he added his view that the judgment was ‘an assertion of judicial power that cannot be justified by constitutional law or principle.’ Faulks went even further: he wrote that Finnis had shown ‘just how badly the Supreme Court mishandled the law of our constitution which it was duty-bound to apply and thus the damage it has done to the integrity of the UK’s political constitution.’ These are strong words levelled against 11 of the 12 members of the United Kingdom’s highest court. (It might be added that Lord Sumption had no particular difficulty with the judgment in Miller (No 2). He was reported as saying: ‘What has happened is that in the face of a particularly disgraceful constitutional abuse the courts have now moved the boundaries – and that’s what happens if you have a power and you abuse it, you find that the system steps in to curtail it. This is how our constitution, which is famously flexible, ought to work.’)

Government ministers also weighed in after the decisions in Miller (No 2) and the related Cherry case. Kwasi Kwarteng claimed that ‘many people are saying that judges are biased. The judges are getting involved in politics’. Jacob Rees-Mogg denounced a ‘constitutional coup’. Former Attorney General Geoffrey Cox QC said that he thought there was ‘a case for looking at how Supreme Court judges are appointed’.

A few weeks after the decision in Miller (No 2) the Conservative Party manifesto stated that a Conservative government would create a Commission on the Constitution, Rights & Democracy which would consider ‘the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative…’ Moreover, it would ensure that judicial review ‘was not abused to conduct politics by another means or to create needless delays’.

In the immediate aftermath of the election many speculated what those words meant. The promise that the Commission would come up with proposals ‘to restore trust in our institutions’ seemed to suggest that the Conservative Party believed that trust in the judiciary had been lost. Lord Faulks himself suggested that the Commission would create an opportunity to reconsider the decision in Miller (No 2). Now we know. In late July 2020 the government announced the formation of an Independent Review of Administrative Law, chaired by none other than Lord Faulks. Its remit is to ‘consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government’. In an article for the Spectator Professor Richard Ekins, who heads the JPP, and has recently been advising the government on the Internal Market Bill, welcomed the Review as an ‘important development in the government’s efforts to address the misuse of judicial power and balance of our constitution’.

Almost simultaneously with the announcement of the Review the JPP issued two papers, written by Professor Derrick Wyatt QC and the busy Professor Ekins, which seemed to advocate the abolition of the Supreme Court. It was argued that the very title ‘Supreme Court’, and its physical separation from Parliament, might incite hubristic thoughts amongst the justices (by contrast the austere facilities of the Appellate Committee of the House of Lords may have ‘encouraged a degree of humility’). Instead was proposed a new ‘Upper Court of Appeal’ which would be made up of a revolving cadre of Court of Appeal judges from the Jurisdictions making up the United Kingdom. The thread running through these papers was a desire to diminish the perceived self-importance of an overweening institution. Professor Ekins believes that the ‘point is how to encourage that court to exercise its jurisdiction responsibly’. One proposed way to do this is to amend the Constitutional Reform Act 2005 by ‘specifying in terms that [the Supreme Court’s] responsibility is to adjudicate disputes according to law, not to guard the constitution’.

To some those sentiments will cause concern. But given the seeming influence of the views of the JPP in government circles these papers deserve attention, at least to detect which way the wind is blowing. There seems to be little doubt that reform of the Supreme Court, and retrenchment of the ambit of judicial review, are ideas which are gaining momentum.

The assumption implicit in the Conservative manifesto and the terms of the Independent Review is that the judges have overstepped proper boundaries and their power needs to be reined in. Is this a justified criticism? There is nowhere better to frame and understand the charges against the judiciary than by considering the JPP’s own website.

First, it is said that ‘our tradition has taken the view that the body that ought to have authority to decide what the law should be is Parliament, in part because it represents the community but in part also because it is best placed to change the law wisely and in a way that secures the rule of law.’

It is difficult to connect these sentiments to the actuality of law-creation in Britain over many centuries. The reality is that much of the law that regulates our lives has been created by judges in a body of authority which dates back to the Middle Ages and which fills law libraries. The common law, in all its complexity, subtlety and flexibility, ranks as a great intellectual project. And as Lord Reid famously said in a speech given in the early 1970s and pointedly titled ‘The judge as law maker’, it is a fairy tale to believe in some Aladdin’s Cave where there ‘is hidden the common law in all its splendour and [that] on a judge’s appointment there descends on him knowledge of the magic words “open sesame”.’ In fact, the common law is created and developed by judges in a never-ending process of refinement and cross-generational conversation.

Parliament has been perfectly content to allow this to happen. Of course Parliament can and does legislate to change the common law; but there remain large expanses where it has chosen not to go near or where it has made only limited interventions. It is in those territories – the law of negligence, the law of private remedies and the law of contract to take just a few obvious examples – where the common law and its cousin equity hold dominion. And even where Parliament intervenes – say in the Sale of Goods Acts – any commercial lawyer knows that the infinite complexity of commercial interaction requires a huge overlay of judicial analysis which coagulates into clear legal rules. An Act of Parliament is simply unable to prescribe fully the legal answer to every question.

What is the alternative? It is a European-style civil code, which is a notoriously blunt instrument for resolving disputes. Anybody who reads judgments from civil law jurisdictions construing such codes finds their respect for English law renewed. Why is it that most international companies would rather that their disputes were resolved by English judges and/or under English law?

Secondly, the JPP tells us that ‘While the courts have had a limited capacity to develop the common law, it is Parliament that has enjoyed the main responsibility for overseeing the content of the law and changing it when required.’ Again, to my mind this statement is at odds with historical reality. The common law is nothing more than the accumulation of judicial learning over many centuries. It changes with the times; otherwise our law would be ossified in the 14th century except to the extent Parliament intervened.

Take two well-known examples of judicial law-making. In 1932 the modern law of negligence was created not by legislative intervention but by the House of Lords. Does the JPP object to this, and all the decisions that followed pushing on the boundaries of that law, as judicial overreach? For centuries the common law of England was understood to hold that a man could not be guilty of the rape of his wife, notwithstanding that she had not given informed consent. Parliament had shown no interest in intervening to change the law then, in 1991 the House of Lords in R v R held that the law should reflect modern mores and decided that the marital rape exception no longer applied. Again, was this a piece of objectionable judicial activism? Should the judges have deferred to a passive Parliament and allowed Mr R to go free?

Thirdly, it is said that ‘British constitutional tradition has thus long centred on a disciplined account of the proper scope of judicial authority, which has been held rightly subject to the legislature’s final authority to choose the content of the law and not to undermine the executive’s constitutional responsibility to choose how best to act within the scope of its lawful powers.’ I suspect few judges would quibble with that. However, the JPP detects undue judicial interference with executive action by a missionary Supreme Court. A proper consideration of this charge would take more space than I have. But to most lawyers the current complexion of the senior judiciary seems a long way removed from its seeming portrayal by the JPP as zealots bent on upsetting the constitutional applecart. Frederic Reynold QC, who published last year a well-received study of the first 10 years of the Supreme Court, detects no notable change in judicial direction in that period (Frederick Reynold, High Principle, Low Politics and the emergence of the Supreme Court (Wildy’s, 2019) and 'Ten years on: how has the Supreme Court fared?’ Counsel November 2019).

I suspect that a good deal of the critique of supposed judicial adventurism is founded on an antipathy to the Human Rights Act 1998. But if the judges are issuing declarations of incompatibility, reading down statutes, or importing ECHR jurisprudence into their decision making (and they are not doing it very often), they are doing no more than what the Act – and so Parliament – requires of them. As Lord Neuberger has recently written, by the Act ‘judges are positively encouraged to rewrite statutes to comply with the convention and therefore to act as legislators rather than interpreters.’ I do not believe this is overreach: rather it is fealty to the judicial oath.

It is notable that this year has seen the publication of three books which celebrate in various ways judicial decision-making against brickbats thrown at it by government and the media: Joshua Rozenberg’s Enemies of the People; The Secret Barrister’s Fake Law; and Inigo Bing’s Populism on Trial. Rozenberg is of course one of our most respected legal commentators, careful in his opinions and no apostle of judicial activism. I suspect that most lawyers, whether they veer to the right or the left, would agree with his ultimate conclusion: ‘Far from being enemies of the people, judges are just about the only friends we have.’

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Thomas Grant QC

Thomas Grant QC is Visiting Professor of Politics and Law at Gresham College. His most recent book Court Number One: The Old Bailey Trials that Defined Modern Britain (John Murray) is out in paperback.