Interview: John Thomas—Why our judges are not “activist”
For one former lord chief justice, who ruled on one of the most controversial cases of our time, the true problem lies not in the courts but with flawed parliamentary processes
The judiciary has rarely faced such intense scrutiny. Critics have seized on recent rulings as evidence the judges have usurped their proper role. Famously, during the first Gina Miller case on triggering Article 50 they were branded “enemies of the people” by the Daily Mail. A landmark government defeat on employment tribunal fees in 2017 provoked further anguish, but it was the 2019 prorogation judgment that tipped critics—and the government—over the edge. The Supreme Court’s decision to annul Boris Johnson’s shutdown of parliament was denounced as political interference. A programme of constitutional review has since been announced—a thinly-veiled attempt to rein in meddling justices.
Yet in the scramble for reform, important questions risk being crowded out. The first is whether there really is excessive activism in the courts; the second, what factors might explain any apparent change in judicial approach.
For answers on both these questions I phoned John Thomas. A former lord chief justice, an ancient role whose holder today is head of the judiciary of England and Wales, he was one of those judges plastered across the Daily Mail front page after affirming parliament’s right to commence the Brexit process. Now retired, he sits in the Lords as a crossbencher. I asked him if there was a problem in the interaction between different branches of the state.
“I think it’s difficult, it really is, if you look at it objectively, to say we’ve had an activist judiciary,” Thomas told me. “Attacking judges for activism is quite often concealment, or an excuse for not allowing proper parliamentary scrutiny.”
He continued: “We should be looking at what the real problem is, which is the decline in parliamentary scrutiny of government action, rather than attacking the judges and trying to stop what has grown.”
It is certainly crucial to view this issue in the round. The courts’ role is to apply laws passed by parliament, but what if that law-making process is flawed? Judges will inevitably find themselves with more to do.
While railing against legal decisions may be “convenient,” continued Thomas, the government would do better to look at its “own position [and] the way in which legislation, particularly delegated legislation, is made.”
The problems of delegated legislation—made by ministers under (often sweeping) powers granted by a prior act of parliament—are manifold (and described in detail elsewhere in this report). Complex instruments are announced by fiat, with parliamentarians given insufficient time for debate. So-called “Henry VIII powers,” which permit ministers to change primary legislation, are a particularly egregious example. For Thomas, this is an inseparable issue from the role played by judges.
“I would observe [that] there has been a tendency for judges to look much more at subordinate legislation, whether it’s compliant with the powers granted to the government by parliament, [when] if parliament had been given the opportunity to look at it properly, these problems wouldn’t arise.”
He went on: “There have been quite a lot of cases where the courts have said that doing things by subordinate legislation is beyond the power of the minister—provisions have been put in [law] which aren’t within scope. And I think that area of work by judges has been encouraged, or has arisen, because of… the failure of the government to permit much of their work to be subjected to proper scrutiny.”
If parliamentary processes improved, would legislation be more robust? “Correct. And… I think that if ministers were much more accountable for decisions made by government, you would probably find the need for less judicial review.”
Perhaps the most important thing is not blockbuster constitutional cases but everyday parliamentary practice. “People don’t often put the work of the judges in the context of the problem with parliamentary process,” said Thomas. “And it’s not parliament’s fault, because I do think an awful lot of people would like to have more scrutiny, but no one will amend the processes to allow this to happen.”
The story may have some way to run. Brexit and coronavirus have produced a mountain of delegated legislation on issues ranging from withdrawal from EU programmes to updates to lockdown rules. The passage of “skeleton” bills leaves just the barest framework in place for ministers to flesh out later.
The problem “will grow much worse under these various acts. If you look at any of the modern bills dealing with our exit from the EU, most of them are frameworks, and everything important will be done in delegated legislation,” Thomas added, with a hint of despair.
On coronavirus, “one of the most telling points is that people should not have to go to court to deal with the problems that have arisen in the Covid-19 emergency. I mean, this legislation [passed in response to the pandemic] ought to have been properly scrutinised, ought to have been properly looked at. And where things have gone wrong—which they may have done, I don’t know—this is really a matter that parliament should be involved in. But it’s not.” By now, there was more than a hint of despair. Various challenges to the legality of Covid-19 regulations have made their way to the courts, though the government has emerged largely unscathed—so far.
“Now I think the real question is one of government accountability, and not… judicial activism.” Absent thorough examination in parliament, “to curtail any attempts by the judges to do these things is, to my mind, trying to promote the supremacy of the executive and make it unaccountable.”
All things considered, is now really the best time to be looking at the operation of the courts? “As if we haven’t got enough to be dealing with,” came the reply. “In my view at the moment it’s completely the wrong time.” He added: “There have been some things judges have done that governments don’t like. But if you look at it across the board,” our judiciary is restrained compared to “the standards of either the European court or by American standards.”
The government looks to be pressing on. Having been “involved in the first of the Miller cases, in the one where we were called enemies of the people… I don’t think they really are concerned about the first Miller case anymore, but the second Miller case they say: ‘Well, this gets a little bit too close to areas where really the judiciary should not tread.’”
Thomas “wouldn’t describe that [judgment] as activist, I would describe that as trying to work out, based on the principles of the way we see our constitution operating, a solution to a problem.” He would not reveal which side he would have taken himself.
Whether No 10’s revolutionary zeal will ultimately subside after the departure of Johnson’s confrontational adviser Dominic Cummings is an open question. But in Thomas’s opinion, “until you can sort out the relationship between parliament and the executive, it’s much better to leave the position of the judiciary alone.”
On the Internal Market Bill:
“Her Majesty’s Government has quite plainly—as the Secretary of State for Northern Ireland has accepted—decided to break a treaty obligation. And what are we doing? We’re complaining about China breaking a treaty obligation in respect of Hong Kong. You can’t have it both ways… I very much hope in due course, that we will take the view this was a terrible mistake, and not take the view: “look what comes of breaking a treaty, we’ve got a good deal.”
On the legal advice given to government:
“I’m not going to get into any detail or give you any particulars, because I simply can’t. But I can assure you that the strength of the government legal service in stopping the government doing things which weren’t a proper procedure or weren’t in accordance with the law has been an immense restraint on governance. We have a superb government legal service.”
On his legal hero:
“My great hero is the Earl of Mansfield. He was a Scot, who was the greatest chief justice there’s probably ever been in England, [in office] from the 1750s right through until the late 1780s. In the public law sphere, one of his most famous cases is when he said slavery was unknown to the law of England. I greatly admire him because he basically established the principles of our commercial law. He was an extraordinary man.”
This interview features in Prospect’s new report on the rule of law in partnership with the Bingham Centre, Jones Day and the City of London Corporation
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