Enemies of the constitution? The words of those attacking independent judges are corrosive and wrong

Everyone has an opinion on yesterday’s decision of the UK Supreme Court. Boris Johnson said on television that he profoundly disagreed with it. Jacob Rees-Mogg reportedly called it a ‘constitutional coup’ on a cabinet conference call. Former Lord Chancellor Michael Gove was distinctly equivocal about it when interviewed on the Today programme. Laura Kuenssberg reported on Twitter that a No 10 source said ‘the Supreme Court is wrong and has made a serious mistake in extending its reach into these political matters’. The fact these people all claim they will still ‘respect’ the decision does not diminish the corrosiveness of their words.

What is meant by The independence of the judiciary

Accepting the idea that nobody is above the law is an essential prerequisite of a modern civilised society and an invaluable safeguard of democracy. Might is not right and judges must be there to enforce the law against even the mightiest authorities. To fulfil that daunting task, judges must be protected against intimidation and victimisation so they can be truly independent, impartial and politically neutral. Many threads have been used to weave this principle tightly into the fabric of our constitution. In his book The Rule of Law, Tom Bingham identifies two of the most important. The 1701 Act of Settlement protected judges against dismissal by the government without good cause. Section 3(1) of the Constitutional Reform Act 2005 (the same legislation that created the UK Supreme Court) now states that:

“The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.”

The same Act of Parliament goes on to impose particular duties on the Lord Chancellor to give substance to the above, including: “the need to defend that independence” and “the need for the public interest in regard to matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters”. One might add that the modern concept of independence means judges should be appointed rather than elected, and owe their appointment not to politics but to decisions of an appropriately expert independent commission made on criteria of merit and good character. That system exists in the UK, which is one reason that the government is encouraging foreign interests to do business in post-Brexit Britain partly because of its proudly impartial legal system.

The role of judges

Having independent judges is essential, but they must also have a defined purpose. In the UK, the role of the judiciary is to interpret broad legislation so as to clarify its meaning and give effect to the intention with which it was enacted in individual cases. In the absence of legislation, judges are charged with applying and, where necessary, developing and clarifying the common law to deliver justice. In doing these things judges work expertly with the fabric of our constitution, a versatile and durable cloth textured with parliamentary sovereignty, the separation of powers and the rule of law.

These are their tools and materials in private disputes and when they are called upon to hold the State to account through judicial review. This involves exploring potential unlawfulness, such as when the state exceeds its powers; acts unreasonably; or fails to be fair and respect proper procedures. As Tom Bingham has put it, in doing so:

“They exercise a constitutional power which the rule of law requires that they should exercise. This does not of course endear them to those whose decisions are successfully challenged. Least of all does it endear them when the decision is a high-profile decision of moment to the government of the day, whatever its political colour. Governments have no more appetite for losing cases than anyone else, perhaps even less…There are countries in the world where all judicial decisions find favour with the powers that be, but they are probably not places where any of us would wish to live.”

A classic judicial review that will prompt clarifications and developments will be one where a boundary of public power that has not previously been firmly drawn has to be laid down. It is always open to politicians to do that tricky job themselves by legislating for their own preferred line, but often they leave it to the judges. Public authorities wishing to avoid judges establishing legal red lines would do well to work within the recognised scope of their power rather than testing its limits. That is especially so when constitutional principles are engaged amidst political upheaval. Our constitution reflects a long tradition of institutional pragmatism characterised by a dynamic equilibrium between parliament, the executive and the courts. The balance point is where the system is free of excesses and abuse, and the courts will scrutinise executive power with particular rigour when the balance may be upset.

The current debates

We covered the decision of the UK Supreme Court in our detailed blog yesterday 'Since prorogation ‘never happened’ what happens next?'. Since then, Professor Mark Elliott has eloquently stated:

“The judgment has drawn criticism from some quarters, attracting claims that the Supreme Court is guilty of overreach by interfering in political matters. However, for three reasons, this charge is unwarranted. First, the crucial issue in the case was a question of law concerning the extent of the Government’s legal powers. Such questions are manifestly suitable for adjudication by courts of law. Second, had the Government offered any relevant reasons for the unusually long prorogation, the Court recognised that it would have been right to extend a great deal of latitude to the Government when assessing the adequacy of such reasons. Third, and most importantly, the judgment amounts to nothing more than an articulation and application of well-established constitution principles, albeit in politically extraordinary circumstances…Far from judicial intervention in such circumstances being constitutionally improper, the Supreme Court would have been in dereliction of its constitutional duty if it had declined to intervene so as to deny the Government unfettered power to undermine fundamental constitutional principle.”

In other words, the justices are just doing their job and it would be remiss of them to do otherwise. For these reasons, it is entirely unwarranted for government officials to speak of ‘constitutional coups’ and ‘serious mistakes’. The serious mistake here is either that these voices do not grasp the subtleties of our constitutional settlement or that they consider it acceptable deliberately to undermine the independence of the judiciary with misinformation. Many in Britain (the author included prior to training as a lawyer), do not receive any meaningful education about our constitution. Qualified statements of ‘respect’ for judges by senior figures are therefore especially harmful – the more so when expressed alongside innuendo about bias over Brexit.

It is time for all with responsibility for matters relating to the judiciary or otherwise to the administration of justice to comply with their duties under the Constitutional Reform Act 2005. They should distance themselves from these corrosive statements and defend the independence of the judiciary.

Further information

We regularly represent parties in judicial review challenges. Our lawyers also blog regularly about public law matters, including in relation to the impact of Brexit. Read our Public Law blog for the latest commentary.

Should you have any questions about the issues covered in this blog, please a member of our Public Law team.