Classen Rafael / EyeEm
On Law

Supremely impartial

Far from being enemies of the people, our judges have a fine record in ignoring political considerations when making their rulings

Joshua Rozenberg

One of the pitfalls of writing a book about current affairs is being overtaken by events. A great deal can happen during the six months between completion of the typescript and copies appearing in the bookshop: my own book Enemies of the People?, to be published on 21 April, was completed before the general election, Brexit and the coronavirus crisis.

But one of the pleasures of writing a book is anticipating future developments. In setting out its legislative programme, the government promised to establish a Constitution, Democracy and Rights Commission. There are some in government who hope it will limit the availability of judicial review, imposing curbs on what they regard as an activist judiciary.

That, in a nutshell, is the subject of my book. I summarise a number of cases — some well-known, others less so — and invite readers to consider whether judges have usurped the role of parliament.

My book is book-ended by Brexit. Its title is taken from a Daily Mail headline about three senior judges who decided in November 2016 that Brexit could not be triggered without an act of parliament. That was Gina Miller’s first victory in the Supreme Court. Bristol University Press allowed me to update the typescript more than three weeks after my deadline when the Supreme Court granted Miller’s second challenge — to the prime minister’s Brexit-related prorogation of parliament.

In my book, I reject assertions that the two Miller challenges led to illegitimate power-grabs by the judiciary. Far from it: in both cases the UK Supreme Court prevented the executive from exercising powers that the justices regarded as matters for parliament. That is where sovereignty should be.

Judges often say they leave their political opinions at the door of the court. But that didn’t stop a newspaper telling us in 2016 how it expected the justices to rule in the first Miller case. The paper’s predictions, based on their backgrounds and social media postings by their relatives, proved hopelessly wrong. Of the four justices it categorised as pro-EU, two of them found for Miller and two for the government.

One of them was Lord Reed. “What some of the media had not understood,” he said last year, “was the fact that a judgment has political implications does not mean the judges are deciding a political question.” Addressing the House of Lords constitution committee last month as president of the Supreme Court, Reed pointed out that in the first Miller case he had found for the government and in the second he had found for Miller.

“I hadn’t suddenly switched from being  a Brexiteer to a Remainer,” he added.

The Supreme Court justices were not the judges who were traduced as enemies of the people in 2016: that fate befell their colleagues in the High Court. As I explain in my book, those judges might have got off more lightly by explaining that Brexit would still go ahead if parliament passed the necessary legislation — as indeed it did.

And the need to spell things out is already better understood. At the end of February, three senior judges in the Court of Appeal allowed a challenge by Friends of the Earth to the proposed expansion of Heathrow airport. In a summary read out in court and published online, the appeal judges said it was important that their judgment should be properly understood.

“We have not decided, and could not decide, that there will be no third runway at Heathrow,” they said. They had not even decided that the project was necessarily incompatible with the UK’s commitment to reducing carbon emissions. They were merely giving the government a chance to reconsider its plans in line with the Paris agreement on climate change, as parliament had required. And then came the clincher: in line with standard practice, the parties had been shown an advance copy of the judges’ ruling — and ministers had decided not to appeal.

For once, both sides were pleased with the outcome. The environmentalists believed their victory would have long-term benefits. Boris Johnson, who has constituency and political reasons for opposing Heathrow expansion, must have been relieved that the decision had been taken out of his hands.

It was not the first time judges had come to Johnson’s aid. Last year, the High Court granted him judicial review of a district judge’s decision to issue a summons alleging misconduct in public office. That just happens to be the way you challenge a private prosecution. But it shows what an important safeguard judicial review can be.

It’s hard to see how ministers could frame legislation that would restrict judicial review. Judges are adept at interpreting acts of parliament in ways that preserve such fundamental rights as access to the courts. It might be possible to limit the standing of campaign groups to intervene in high-profile cases — but that would make little difference.

No details have yet been disclosed about the government’s planned constitutional commission and I expect we shall be none the wiser by the time The Critic is published. Unless, of course, this column is overtaken by events.

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