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The law and its limits

Accused by critics of political activism, the UK Supreme Court is under more pressure than ever before, raising the question: what should the umpire in a democracy look like?

By Alex Dean  

Isabel Infantes/EMPICS Entertainment

In the autumn, millions of people went online to watch a live-streamed event. This was not some sporting tournament but the proceedings of the UK Supreme Court. Detailed legal arguments were put forward and considered; opposing views were heard on constitutional precedent stretching back to the 1600s. I watched the viewer tally tick up and up. Yes, these are unusual times for the UK judiciary. And in many ways, they are frightening ones.

There is no question our highest court is in the public eye more than ever. In the wake of recent judgments its fame has rocketed. The case on Article 50 in 2017, led by Gina Miller, caught the public imagination like no other case beforehand. The second Miller case on Boris Johnson suspending parliament in September 2019 hit another level of interest.

Lady Hale, then the court’s president, became a superstar. In October I even went to the launch of an illustrated children’s book called Equal to everything: Judge Brenda and the Supreme Court. The spider broach became iconic, as did her self-designation as a “girly swot,” a response to Johnson’s disparaging description of David Cameron. Progressives, who see Hale as one of their own, quickly took up the label with pride.

So the court is more prominent. But it is also far more controversial. Indeed the judges have been at the centre of a political firestorm in recent months and the future of the court is uncertain. Some commentators, especially on the conservative side, accuse the judges of judicial overreach. They say they have strayed into the political sphere, where they do not belong, and are taking decisions that under our constitution should properly be left to politicians.

If judges become celebrities in their own right (the thinking runs), the subject of tributes and even children’s books, that is a sure sign they have grown too big for their boots.

Shortly before Hale stepped down, Lord Dyson, an impressive former Supreme Court judge who overlapped with her, told me “maybe I shouldn’t say this but I will. I do think Brenda, who I’m extremely fond of and know very well, I think she’s beginning to see herself as a bit of a media star. And once she’s ceased to be a judge that’s OK… But while still in post, once she starts talking about ‘girly swots,’ it’s not wise… I think judges should just get on with their job.” In late December, while still president, Hale guest edited the Today programme. Charlie Falconer, lord chancellor during the creation of the court, told me she overplayed her hand, adding “I think that it would be better if she had had nothing to do with what is the flagship political programme on the radio.”

The judgment record is even more contentious. In 2017 there was profound disquiet in some quarters. After the prorogation case in September the attacks went into overdrive. Johnson proclaimed that the court got it “wrong.” Geoffrey Cox, the attorney general, even suggested than in future there could be parliamentary scrutiny of SC appointments, though he personally would regret such a move. The 2019 Tory manifesto promised a constitutional review that could clip the court’s wings and the subsequent Queen’s Speech laid the groundwork for a Constitution, Democracy and Rights Commission, which Johnson now has a large majority to pursue.

One person involved in both Miller cases, referring contemptuously to the behaviour of the “lordships” and “ladyships,” told me they “preened themselves on their ‘historic’ role without really understanding anything about contemporary constitutional theory and practice.” They “illegitimately interposed [themselves] between parliament and the government,” this person said, adding “I don’t feel ‘angry’ about this but I am fearful.” Some former judges voiced similar concerns, if in moderated language.

I spoke to lots of other judges and lawyers, many of whom worry that the court, even the judiciary as a whole, has strayed from its theoretical position in our constitutional landscape to somewhere very different. Others disagreed, insisting that the court has worked effectively to provide the last set of checks and balances against an overbearing executive. They watch on with growing alarm, wary of where government interference could lead. So where does all this leave the highest court in the land? Is it possible to rule on political questions without becoming an overtly political court? And is this government to be trusted with reform?

All these questions are more important than ever as Lady Hale retires and makes way for her deputy and successor. Lord Reed is tasked with navigating impossibly fraught terrain in the years ahead. He is a careful man who may take a different approach to his predecessor, both in his public profile and his jurisprudence. Along with his promotion, three new justices will join, changing the composition of the court. All will be reckoning with the question: what should the chief umpire in a democracy look like?

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The UK Supreme Court might seem like a venerable institution but it is in fact very new. It came into existence in 2009, authorised by the Constitutional Reform Act of 2005 and overseen by Falconer. It assumed the judicial role previously played by the Lords of Appeal in Ordinary, or “law lords,” in the upper chamber. Having sat in parliament since the 1600s (though their position was regularised in 1876) judges moved across Parliament Square to occupy the grand building at Little George Street; the legislative and judicial branches of the state became physically separate. The 12 justices, in practice like their recent predecessors, rule only on appeals from lower courts on matters of the greatest public importance. For new judges the mandatory retirement age is now 70.

But despite the name, apparently chosen to make clear the separation of powers but perhaps also to sound impressive, the UK Supreme Court was never meant to function like the US version. In America they have a court which is able to strike down laws and statutes. US judges are politicised appointments, with presidents nominating ideological allies who then face confirmation hearings in front of a senate committee. The UK, by contrast, has a doctrine of parliamentary sovereignty: MPs make the law and judges, appointed on the recommendation of an independent commission, apply it. If politicians’ intentions in legislation are clear, theoretically the courts cannot do anything to gainsay them. But the judges are not beholden to any political tribe, we do not know their political leanings, and their rulings are arguably less predictable as a result.

Falconer told me the creation of the UK SC was simply about ensuring the independence of the judiciary, and indeed the lord chancellor ceased to be its head during the overhaul. It was certainly “not intended to be an echo in any way of the United States of America.” He stressed the judges “decide cases in exactly the same way” and in practice have “no greater jurisdiction than [they] had before.”

This sounds very moderate. But critics argue the UK court has increasingly overstepped the boundary. It has begun to play a role more properly reserved for a constitutional court. If it is going to do that, they say, it must be overhauled. Are they right?

It is certainly true that there has broadly speaking been a growth of judicial power in the UK over the decades and well before the creation of the Supreme Court. There has been a massive rise in the number of judicial review cases, enabling citizens to challenge the legality of decisions made by public bodies. Hale recognised this on Today, though claimed that rise is for “a wide variety of reasons.” What is not disputable is that the increase has been dramatic. There has also been an expansion in scope, for instance since the 1984 “GCHQ case” which established that certain prerogative powers, previously exempt, were open to judicial review.

That law’s empire is expanding was the thesis of former Supreme Court justice Jonathan Sumption’s 2019 BBC Reith lectures, which argued that the courts are straying into territory better reserved for politicians or even individual agency. Sumption, who agreed with the court’s judgments in the Miller cases (and ruled on the first of them), nonetheless told me “I don’t mind it becoming a court for dealing with the legal aspects of the constitution. But much of our constitution is not legal at all. It’s a matter of political convention. And I would certainly not wish it to enter into that field.”

“I think there is a danger that if judges, applying particularly human rights legislation, start usurping the function of parliament, there will be a backlash… I think there is an undercurrent of feeling that things maybe have gone further than they really should have done.”

Partly the change is to do with the incorporation of EU law, which (for now) has supremacy over UK law and will remain a source of contention. In the famous “Factortame” fishing case in the 1990s, an Act of Parliament was disapplied by the law lords because it was contrary to European law. Since then there have been myriad judgments in which the courts have struck down legislation as being contrary to EU law. The courts have also issued “declarations of incompatibility” with the separate European Convention on Human Rights, to which the UK could remain a signatory and which is embodied in domestic legislation by the Human Rights Act (a declaration of incompatibility however does not necessarily entail that law being disapplied).

Lord Hope, former deputy president of the SC, explained that judges “Having to engage with issues that attract… controversy is not new,” citing also the Belmarsh prisoners case 2004, when indefinite detention without trial was declared incompatible with the Convention. It is also the case that “Judicial review of the conduct of ministers has been part of our law for many decades.” But though courts have intervened controversially before, they have rarely done so as publicly as now.

The creation of the Supreme Court led some to worry that judicial power would grow yet further. The court is “aware that, because of its name and where it sits, it has to take greater care than its predecessor about the way it presents itself to the public,” said Hope. But in the past few years the accusations have grown beyond anything previously imagined. A fraught case on employment tribunal fees, which the government sought to introduce but the SC ruled unlawful, prompted some disquiet. Two more recent cases on Brexit have brought the issue to a head.

The 2017 Miller case was the first of these, which ruled that the government could not begin Brexit by triggering Article 50 without an Act of Parliament. MPs had passed the European Communities Act when we joined, ran the argument, and parliamentary sovereignty meant only MPs had the right to force its repeal. Others argued international negotiations are the traditionally the preserve of the “royal prerogative,” meaning it was for the government to decide. To violate this principle would set a dangerous precedent.

When the high court ruled in favour of the claimant the Daily Mail ran mug shots of the judges under an “Enemies of the People” headline. A divided Supreme Court then ruled the same way—though Lord Reed, interestingly, did not. There was a fierce populist backlash. MPs voted to trigger Brexit anyway, but for some spectators, a judicial watershed had been breached. But away from the frothing front pages there was a serious legal question to consider. There are sometimes gaps in the law and it sometimes falls to our judges to close them. What is the window of judicial discretion, and had it been exceeded?

Lord Reed himself said in his dissenting judgment, “It is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary.”

The case in 2019 was even more controversial. Johnson had prorogued parliament, traditionally a prerogative power, ostensibly to prepare for a Queen’s Speech but widely seen as an attempt to evade scrutiny on Brexit. Nothing seemed to explain the five-week length. Miller and others, including former prime minister John Major, appealed the case. In a highly dramatic ruling, the Supreme Court declared Johnson’s decision unlawful because its effect would have been to frustrate parliament’s functions and the government had failed to give any explanation at all for the length of the prorogation. This time, against all expectations, it was a unanimous verdict. The justices said the suspension was “void and of no effect,” and that “parliament has not been prorogued.” To the shock of commentators who had written off the cause as hopeless, the court had blocked the move. But this gave its critics only more ammunition.

In the days that followed, leader of the House of Commons Jacob Rees-Mogg was reported to have called it a “constitutional coup.” A No 10 source said the court “made a serious mistake in extending its reach to these political matters.”

Critics had had enough. The justices had abused their jurisdiction. If we are to have a “political court,” some said, then we need to involve politicians in the appointments process. Speaking about Brexit and the future of the judiciary, Cox said “there may very well need to be parliamentary scrutiny of judicial appointments in some manner.” Denials were slow and reports have surfaced of cabinet ministers in favour of such a move. Even if not a full-on US-style system, some argue smaller changes are needed. Should the court be reformed in light of the highly contentious events of recent times?

Certainly many view political interference as a profoundly dangerous prospect at odds with our constitution. The House of Lords Constitution Committee rejected the idea in 2012. And for one cohort of commentators today the case for reform is without merit. Senior judges “take their constitutional role, and the appropriate limits on it, extremely seriously,” said Helen Mountfield QC, one of the UK’s leading legal minds and now principal of Mansfield College, Oxford. “They are assiduous to ensure that they do not trespass on the role of the legislature or the executive.” David Anderson QC, former independent reviewer of UK terrorism legislation now in the Lords, takes a similar view: “Judges apply the laws that politicians make, and if politicians don’t like the result they are free to amend the laws.”

There is a lot to recommend this view. Arguably the court has not intervened in politics per se but rather on process. After all, in Miller 1 it was not Brexit itself in question but the authority of the executive to start the clock (and indeed after parliament was given the power to trigger Article 50, it did so). Meanwhile Miller 2 was arguably not about proceedings in parliament, but rather the fact that parliament has a right to have proceedings at all, and sit at an immensely important time. Neither case was about politics as such.

For Hope, recent cases have simply “served to emphasise the fact that no politician, however eminent, is above the law, and that the job of the Supreme Court is to give effect to that principle.” It is a principle of self-evident importance.

But other experts insist the SC made a terrible mistake. It is not simply that it has been hostage to some sort of “liberal takeover” (certain SC rulings on immigration issues would dispel anyone of that illusion). Rather the accusation is that the mindset of the courts is just too activist. They should have refused to get involved, ruling the cases, in the jargon, “non-justiciable.”

Stephen Laws, former first parliamentary counsel, the government’s chief draftsman, and now a fellow of the Judicial Power project at Policy Exchange, was highly critical. The judges’ language in Miller 2 was “tendentious and exaggerated,” he said. But “The real problem… is a growing institutional misconception, in the courts and the legal profession more widely, that the law has a useful part to play in the resolution of what are essentially political disputes. This seems to involve an implied dismissal, even perhaps contempt, for the political process.”

“It is not only the Brexit litigation that has been a cause for concern…. the courts have been willing, in other public law cases, to engage in second-guessing political decisions, such as those relating to freedom of information, the supervision of the security services, the allocation of social security benefits and the funding of the justice system.” That is a problem, he says, because “the final and most influential decision-maker on public policy must always be the one with democratic legitimacy”—parliament and the government currently having the confidence of the House of Commons. Recent rulings had the regrettable consequence of providing “an encouragement to the use of litigation for ‘politics by other means.’”

There is also the problem that judges appear to some to be a self-selecting elite, further contributing to their image as out of touch and undemocratic. There is no longer the “tap on the shoulder” method of old: as Anderson put it, “The Judicial Appointments Commission, with its strong lay composition, has put an end to the opaque old methods of appointing judges.” But the impression still lingers of the judiciary as a closed priesthood made up of public school Oxbridge elites. On such a controversial and divisive issue as Brexit, judges can easily be cast as enemies of the popular will.

So maybe it was inevitable, if regrettable, that talk turned to parliamentary vetting of new appointees. And with a hefty majority the government could now enforce such a change if it so chose.

But Hale could not have been clearer in her comments to Today. “We don’t want to be politicised,” she said. “We don’t decide political questions, we decide legal questions. And in any event, parliament always has the last word.”

And politicisation would provoke alarm even among some critics of the court’s recent activism. For Sumption it would be “objectionable and useless.” As for Hope, “Those who make the suggestion are naive and ill informed.” In the view of Stephen Sedley, a former Court of Appeal judge, those suggesting this “need to consider the slippery slope on which they are embarking. Politicising judicial appointments may be a first step towards the destruction of judicial independence.” And as Mountfield added, “If judges would not, in some way, be beholden to the government which appointed them, why introduce a level of political scrutiny in their appointment?”

It is a good question. But it may not be complete overhaul that ends up doing damage. Other smaller reforms resulting from the commission could still chip away at the status quo. For Laws, while “radical change” is not a good idea, “It is not surprising… that some are arguing for more political control over judicial appointments. Some minor legal adjustments in the relevant procedures may be required, because the current system does now give the unhealthy impression of producing a judiciary that is effectively self-selecting.” Options floated in another expert’s recent Policy Exchange paper include presenting the Lord Chancellor with a choice of three possible appointments, rather than just one, so that he or she can exercise their own judgment, as well as reviewing the scope of judicial review, limiting the application of the Human Rights Act and even renaming the Supreme Court to send a signal. Laws and the paper’s author are seriously well-informed. But the danger is of a slow erosion of important principles, and a blunter instrument could do real harm if tasked with affecting change.

There is another, related, problem, which is that even if nothing much ends up actually changing, talking up the issues with the judiciary and the need for an overhaul could cow judges. This is something that barrister Jolyon Maugham, founder of the Good Law Project and a successful claimant in the Miller litigation, has openly worried about on the Prospect website.

In Sumption’s view, “Overt threats are invariably counterproductive. I know my colleagues pretty well. They are not going to back down because the government threatens them.”

But for some, even if nothing concrete happens, the mere threat could lead courts to self-censor—especially in cases involving the government, meaning the executive has a freer hand. It would be a problem if judges no longer feel they can make proper decisions because they are worried about jeopardising their own positions.

Part of the reason this is all so troubling is the background it comes against. It may be the higher courts that have been in the line of fire in the press. But the legal system as a whole has come under immense strain since 2010, with cuts lower down in the chain, where justice is less flashy but just as important. The Ministry of Justice has had its budget cut by a quarter; 295 courts facilities have closed; legal aid has been savaged. For sceptics, the attacks on the Supreme Court are just one manifestation of a wider government assault on the rule of law. Whether the Johnson administration will reverse all these cuts remains to be seen.

Indeed, the Supreme Court has over the past few years been a champion of democracy, defending the UK against an overbearing PM. The true threat comes not from “celebrity judges” (though personally I would like to see a bit less of this) or even unusual rulings, but from the unruly executive, whose contempt for democratic norms made them necessary in the first place.

The hope has to be that this government is too consumed with other issues to embark on such a course. And maybe, with a majority in parliament, it won’t need to. But as the UK leaves the EU there are sure to be future flash points and this is a PM who has shown little patience with institutions that get in his way. Are democracy and the rule of law safe in his hands? Or is Johnson set to undermine Britain’s judiciary for his own gain? A look elsewhere in Europe shows that attacks on the rule of law often start imperceptibly and grow over time.

Hope said “We cannot see into the future, so I do not know what challenges will face [Lord Reed] as we settle into the new world of Johnson’s government. But he will not be alone in facing up to them.”

The government risks fighting a phantom, causing more problems than it solves and undermining Britain’s hard-won—and much deserved—reputation for judicial independence and stability. This is not just a concern for judges but for everyone who cares about Britain’s justice system—and the functioning, or otherwise, of its democracy.

Lady Hale and the Supreme Court declined to comment

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