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How the myth of judicial activism has taken on a life of its own

Call this out for what it is: an executive power project
February 28, 2020

The middle class, according to some historians, is always rising. Similarly, there will be those who will always contend that the judiciary is going too far. And this belief will be held firmly, even stridently, regardless of what is—or is not—happening in the courts. It is a view that has a life of its own.

Today there are those in the United Kingdom who are energetically promoting the view that the judges are being far too active. The commentary and the critical articles write themselves, so reliant are they on tropes, stereotypes and prejudices about the courts and those who work in them. The power of judges is expanding and has to be checked. Even those who seek to counter these views (as with the cover story for this magazine last month) often buy into this narrative, justifying judicial interventionism rather than questioning whether it is actually taking place.

There is, however, little compelling evidence that the judges are in fact over-reaching themselves, either systemically or at all. Indeed, in respect of public law and the judicial reviews that regulate what public bodies can and cannot do, the last decade has been quiet. Other than the two exceptional Brexit cases associated with Gina Miller that ended up at the Supreme Court, it is difficult to think of a significant recent case where the province of public law and judicial review has been extended. And the extraordinary facts of those two cases are unlikely to be repeated.

There have been some periods where the courts have (in their preferred euphemism) “developed” the law. In the 1960s, there was a sequence of cases (Ridge v Baldwin, Padfield, Anisminic) where the judicial branch of the House of Lords first put in place the modern public law principles that are still generally followed. In the 1970s Lord Denning and other judges frequently sided with the police or against trade unions in sensitive cases. Such was the fear of politicians, back then from the left, that in 1977 there was a near-bestseller called Politics of the Judiciary.

[su_pullquote align="right"]“From his No 10 bunker it is said ‘Dom wants to get the judges sorted’—but it is all based on a sham”[/su_pullquote]

In the 1980s, procedural changes at the High Court occasioned a rush of public law challenges, and in the 1990 case of Factortame the House of Lords actually set aside (“vacated” was the polite fiction) an Act of Parliament for the first time, because it clashed with European law. Home secretaries were being defeated in court seemingly every week. And in 1993, in a deportation case, the House of Lords in M v Home Office held for the first time that injunctions could be granted against ministers of the crown. Factortame and M v Home Office are perhaps the greatest extensions of judicial reach in public law history, and they happened 30 years ago.

Those were heady times for public lawyers, but those days are largely gone. Even the Human Rights Act 1998 has had little practical impact on judicial review (though it had a strong effect on the private law concerning privacy). Judicial review has for the last professional generation become far less exciting, and the leading cases relied on in arguments to the judge, setting out the principles to be followed, are usually those of the last century.

But this inconvenient truth has not prevented the current frenzy about the need to “rein in the judges.” After three decades of relative judicial calm, voices, especially from right-leaning think tanks and the so-called “Judicial Power Project,” are regularly heard on the radio and television alleging judicial overreach, even though they rarely emphasise specific cases. The issue is coming to a head, something has changed, and there is now a mood of “something must be done.”

What has changed, however, is not the law but politics. The judiciary is an independent check on the executive. This means there are things that those currently enjoying executive power cannot do, because the judges are beyond their reach. In the United States, this predicament for those in political power has been addressed by ensuring that, as far as possible, appointments to the judiciary are of those whose politics seem sound. Hence the Trump administration and the Republican-held Senate can reshape the judiciary for decades to come.

In the United Kingdom, where judges are not politically appointed, such a direct approach will not work. And so the alternative of seeking to discredit the judiciary is being pushed instead. As the general level of knowledge about the domestic legal system here is so low (many people believe, for example, that British judges use gavels), the judiciary makes for an easy target in the culture wars. From his No 10 bunker, it is said that “Dom wants to get the judges sorted,” and this in a context where the looming “constitution, democracy and rights commission” could, potentially, provide a vehicle for fundamental constitutional reform.

But it is still all based on a sham. The government legal service is already skilled and able to make almost all policies and proposals “judge-proof.” Indeed, the internal manual for law-makers is called the “judge over your shoulder.” Well-drafted and well-prepared legal instruments and government decisions will invariably be upheld in the courts. Actions are now usually struck down as unlawful because there has been sloppiness or recklessness, and as such the courts do a good and necessary job in checking excesses.

So there is an artificially inflated narrative of judicial activism. The context for this is telling: there are concurrent attacks on impartial civil servants and diplomats, on public service broadcasting, even on the free press. It would seem that executive power based on a parliamentary majority is not enough: all the power of the state should be in the hands of the executive.

In these strange days, fundamental constitutional changes on the back of shallow reasoning and insufficient evidence cannot be ruled out. And there will be those who will clap and cheer. But one should still see the threat to checks and balances in the constitution for what it is: an executive power project.