Joshua Rozenberg is our premier legal commentator, a national treasure and the legal columnist of The Critic. There are four estates in the legal realm — solicitors, barristers, judges and Joshua. He is close to judges and knows what, and more importantly how, they think. Sometimes you feel reading his new book that he has access to “the room where it happens”, where decisions are actually reached. He has attended and commented on most of the cases dissected in the book, which is a tour d’horizon of the most important recent legal cases in several distinct fields of laws. If you have ever wondered what the judges really do, this is the book for you.
It also has a sustained tilt at the view propounded most famously by Jonathan Sumption (the recently retired Supreme Court Judge) of the ever-expanding reach of legal activism as elaborated in his Reith Lectures (especially in the area of judicial review).
The title of the book comes from the notorious headline in the Daily Mail after the Divisional Court decided the first Miller case about Article 50 in favour of Gina Miller. The Daily Telegraph headlined this a little less tendentiously as “Judges v the People”. The Mail compounded its objections by describing one of the judges as an “openly gay ex-Olympic fencer”.
The fact that a judgment has political implications does not mean the judges are deciding on political grounds
The Lord Chancellor, Liz Truss, kept silent about the attack on the independence of the judiciary, which she had sworn an oath to defend. She said it was not for her to condemn newspapers; when she did some days later make some tepid remarks of support for the rule of law, Lord Judge rightly described them as “a little too late … and quite a lot too little”. Importantly, after the second Miller case on the prorogation of parliament, the present Lord Chancellor, Robert Buckland, sprang to the defence of the judges. Rozenberg notes the reduction in the attraction of judges’ role for lawyers after the Mail headline. It no doubt had an impact on public confidence in the judiciary too.
Rozenberg cites David Gauke, who said that judges do not act against the people; rather they share power in the best interests of everyone. It is this sharing of power in which the crucial tension lies. This theme runs throughout the book; the fact is that inevitably judges do make law, although not every day, and they try to avoid it; mostly they are applying statutes which are clear and/or applying legal precedent.
Lord Reid once said it was to believe in fairy stories not to think that judges sometimes make law. Lord Denning famously propounded, “We do not sit here to pull the language of parliament and ministers to pieces and make nonsense of it”, but there are inevitably some conservative and some activist judges (and it is important to say that this difference in legal philosophy does not necessarily reflect their political views). One of our most activist judges, Lord Justice Sedley, said that “judges are either active or asleep”.
At the very least, they try to adapt the law to modern conditions. The fact that there may be a
charge of rape between married couples is entirely decided on by judges seeking to bring the law into line with modern times. Indeed, Rozenberg stresses that much of our criminal law is not statutory but was instead developed by the courts over centuries. Of course, what one person describes as activism may be to another modernisation, creativity and compliance with changing moral and other norms.
In many areas the law represents a clash of rights and none more so than in discrimination law. Rozenberg examines the balance of interests of gays and the religious, in particular in what has become known as the “gay cakes” case: Lee v Asher’s Bakery, where a bakery owned by religious Christians refused to bake a cake celebrating gay marriage. The Supreme Court ultimately decided that this was not unlawful because the refusal was not on the grounds that Mr Lee was gay.
Another important case considered in detail is one where a disabled man could not get his wheelchair on a bus as priority was given to pushchairs. Here Rozenberg poses the pertinent question whether “we can really justify the cost of three hearings before 11 judges just to establish that the law requires drivers to show common sense when faced with difficult customers”. His explanation of indirect discrimination and article 14 of the European Convention of Human Rights is a masterpiece of exposition.
In his dissection of the two Miller cases, Rozenberg explains clearly the clash between prerogative powers and the sovereignty of parliament. In the first Miller case, the judges restored the fundamental principle that the executive could not be used to vary or diminish existing statutory rights by invoking Article 50 to overturn legislation in the form of the European Communities Act without the imprimatur of parliament. Rozenberg argues however that the judges made no attempt to “sell” their judgment by making clear its boundaries. This often happens and allows all sorts of distortion to go unchecked. The case did a great deal for interest in the law; some 300,000 people watched it on TV and it was gripping.
Although Jacob Rees-Mogg flamboyantly described the Miller 2 case about prorogation of parliament as “a constitutional coup”, it was again a reassertion of the importance of parliament (as indeed Lord Sumption accepts). The remarkable feature there is that the 11-member Supreme Court reached a unanimous decision with a lucid judgment in a rapid turnaround time.
The final chapter is the most important and original in the book. Here Rozenberg challenges the view of the Judicial Power Project and Lord Sumption that judges have gone too far in “undue judicial interference which fails to respect political judgment and discretion” and have become too activist in law-making. The usually unspoken assumption of this argument which Rozenberg draws out is that (quite unlike the time when I started as a barrister) as Lord Justice Potter once put it, judges are “unashamedly progressive members of the chattering classes, spiritually if not actually resident in Islington or Hampstead” (I should declare an interest as I live in Islington).
Rozenberg looks in detail at several of the cases referred to by Sumption as being examples of judicial activism. For example, he sees the case about whether Charlie Gard should have an operation not as inappropriate judicial activism (as does Sumption) but as an excruciatingly difficult set of facts which called for judgment. Rozenberg is in a great position to bring out the styles and idiosyn crasies of particular judges, especially Lady Hale (described by Quentin Letts as a “beady-eyed old nanny goat; if she is a Leaver I’m a Martian”).
The fact that a judgment has political implications does not mean the judges are deciding on political grounds. Rozenberg’s verdict is that “on the whole they know just how far to go”. He concludes: “Far from being enemies of the people, judges are just about the only friends we have.” I agree.
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