Whilst the division of legal authority between Parliament (our primary law maker) and the courts (our interpreter of the legislation passed) and the sovereignty of Parliament is a concept familiar to the judiciary, respect for it in practice has been challenged by politicians, the press and the public who have, in recent times, asked whether judges have exceeded their powers when judicial decisions have been made which offend them. That challenge has made me question how and where the judiciary draws the line between what is in their remit and what is a matter for government. In writing this lecture for Gresham, delivered on 7.3.19, I had had a number of overlapping ‘voices’ in mind: those of the judiciary, Parliament, the press and the public.
Consider press and public reaction to the successful Article 50 challenge mounted by Ms Miller and the resultant judgment of the High Court in R. (Miller) v Secretary of State for Exiting the European Union  EWHC 2768 (Admin). Remember the Daily Mail headline identifying and naming the judges as ‘Enemies of the People’ and Nigel Farage’s front-page article entitled ‘Voters aren’t going to let this incredible arrogance lie’ beneath the Daily Telegraph’s headline ‘The Judge versus The People’.
What pressure does a vocal public and press bring to bear upon the decisions of our politicians and judges? Consider the Home Office letter sent to Shamima Begum informing her that an order was being made under the British Nationality Act 1918 stripping her of her citizenship; a letter sent before ascertaining whether she had dual nationality and then receiving legal advice upon the legitimacy of the order made. This attracted criticism of the Home Secretary that he was seeking to exploit a tide of hostile populist feeling without paying proper attention to the law.1
What of Lord Hain MP, under parliamentary privilege, naming Sir Philip Green as the subject of allegations of sexual harassment and in the process of doing so, riding a coach and horses through the “super injunction” granted by the court to Sir Green protecting his identity? 2
What of serving judges, such as Hayden J, decrying the lack of legislative powers at his disposal in court, knowing and intending that his comments be made public? He called for powers to enable him to redress the institutionalised abuse he was obliged to preside over, when watching a victim being cross examined in person by her alleged abuser due to a lack of legal aid and legal representation.3
What do these examples say about the level of mutual respect between politicians and judges and about the understanding of their separate spheres of power and influence? What do these illustrative headlines tell us about the interface between politics and law? My lecture, and this article taken from it, explores the conflict between the two, in practice rather than theory.
Having read and digested the many speeches given by academics, journalists, Law Lords and Ladies on the subject matter I have come to appreciate that there are as many differences as there are similarities in approach. This lecture comes with a health warning that the views I express are my own and what one lawyer argues, another may rebut with great coherence and force.
The boundary of law and politics is permeable; different judges reach different judgements on the same facts when this permeability comes to the fore; this variety in judgements is the result of excess, rather than too little, care by judges to police this boundary, as it arises from there being multiple well thought-out viewpoints on how best to conceptualise law and politics.
Following 9/11, the UK had derogated from its obligations under Article 5(1) ECHR (right to liberty and security) by detaining, with neither charge nor trial, foreign nationals for whom deportation was not a possibility, using the powers available under Article 15 ECHR (which is conditional upon war or other public emergency threatening the life of the nation)
Does the approach the court takes depend on its composition and the permeable nature of the boundary between the remits of the legislature, executive and judiciary? Does the balance between judicial activism or judicial deference come down to the personality and persuasion of the judge(s) and the case in question? This case appears to answer both questions in the affirmative.
- The interpretation of law and balancing the autonomy of the judiciary and the sovereignty of Parliament is an art not a science: different judges police the boundary from different directions
When matters of legal and ethical importance require determination by the court in circumstances where the issue has not been prefigured by the legislature, the application and interpretation of existing legal principles to a unique case will be a matter of judicial art (with its elements of subjectivity and individuality) rather than science. That is why different judges in the same court can and do reach different conclusions on the same law applied to the same facts. That is an important matter for professional acknowledgement not just because it is patently true, but because in deciding whether to make a decision that will effect a change in the common law different judges may draw the line between their autonomy and the sovereignty of Parliament. Judges of equal standing and calibre may take different courses. Where one judge may step back and refer the matter to Parliament, another may make deliver a judgment which will move the law on.
The composition of the court can affect a case’s outcome. The division of the court makes this plain. However, the quality of the judges’ analysis in this case is uniformly exceptional: it is intellectually robust, it is transparently laid out. One knows who has decided what and why. The judgements have a clarity and eloquence that is often missing in parliamentary debate. What is missing here is accountability to the electorate for the decision.
The point of interest to me is that this was not a unanimous decision. I make the point again about equally competent judges coming to differing interpretations of the same law on the same facts. Lord Hoffmann dissented on the public emergency issue and Lord Walker dissented on the proportionality and discrimination issues. There is a range of equally astute, intellectually robust decision makers in the Supreme Court: one should not (nor can one I believe) take the personality (with all its power of individual thought, experience, reflection and analysis) out of the equation when considering the way in which judges can develop (and challenge), by interpretation of the law, what might have been the intent of the government. That would be artificial, in my view.
This case shows the court wrestling with the boundaries of their role and what is to be considered to be political (and therefore out of their remit), in the context of the government having declared a state of emergency that threatened the life of the nation.
Contrast and compare the approaches of Lord Hope of Craighead:
“[…] whether there is an emergency and whether it threatens the life of the nation are pre-eminently for the executive and for Parliament.” [para. 116]
…with that taken by Lord Hoffman dissenting on this point with Lord Bingham:
“I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community […] in my opinion, such a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give terrorists such a victory.” [Para. 96-97] [my emphasis]
Lord Hoffman suggests there is no evidence a threat existed which “threatened the life of the nation.”, whereas Lord Hope seems to assert that any evidence or lack thereof is the executive’s to consider, not the court’s. It can clearly be seen in the passage quoted above however, that Lord Hoffman’s readiness to adjudicate on the matter arose not out of a disregard for the boundary between law and politics, but out of a concern that political decisions did not trample on legal, constitutional rights. This emphasises the point that diversity in judgements is the result of an excess of care over policing the boundary, and a variety of conceptualisations of how best to do so. Space precludes a discussion of what these conceptualisations are and the comparative merits of them; it suffices for our purposes that a variety has been shown to exist, and all are concerned with respecting the boundary between law and politics.
1.4.1 What of judicial pronouncements that call into question the nature and impact government legislation, or the lack thereof?
Consider the judgment of Wood J in H v L (2006) EWHC 3099 (Fam) setting out the appalling consequences of there being no legal aid for legal representation; in particular someone being cross-examined by their alleged abuser, acting as a litigant in person. Wood J was robust in his conclusions and ended his judgment with a bold invitation to the legislature:
“I would invite urgent attention to creating a new statutory provision which provides for representation in such circumstances analogous to the existing statutory framework governing criminal proceedings as set out in the 1999 Act. Such a statutory provision should also provide that the costs of making available to the court an advocate should fall on public funds. I can see no distinction in policy terms between the criminal and the civil process. Logic strongly suggests that such a service should be made available to the family jurisdiction. If it is inappropriate for a litigant in person to cross-examine such a witness in the criminal jurisdiction, why not in the family jurisdiction?”1
Consider the comments of Baroness Hale in her lecture ‘Equal Access to Justice in the Big Society’2. In her opening address to the Law Centres Federation Annual Conference, she described some aspects of the Government’s proposed legal aid reforms as ‘fundamentally misconceived’44, and went on to describe other aspects of it as a ‘false economy’.45 Such comments enter the territory of government policy and, indeed, a particularly controversial aspect of policy. As such it might be said that, notwithstanding the caveat at the opening of her address, which was to the effect that it is not for judges to criticise government policy46, such comment was inappropriate. Lord Neuberger defended her in his article ‘Where Angels fear to tread’ 3 thusly:
“It seems to me though that, while it may have been brave, it was not impermissible for Baroness Hale to make the points she did. Judges can, I suggest, properly comment publicly on matters which go to the heart of the functioning of the judicial branch of the State. In some circumstances, it could be said to be their duty to do so. In the past, it would have been easier for them to do so whilst donning their legislative hats in the House of Lords, or via the Lord Chancellor. But those days are now gone.”
You now read a brief overview of how judicial independence is underpinned by our constitution and law. I have invited you to participate in the lively judicial debate about how best to respect the distinction between law and politics. Now I turn to consider whether political responses (fuelled by reactions of the press and public) to judicial decisions in recent years undermines the unwritten rule that underpins the separation of powers: namely that it operates on the basis of mutual respect between Parliament, the government and the judiciary.
The unwritten rules: are they ‘rules’ anymore?
Frankly, no: certainly not absolute ones.
The Telegraph headline on 4th March 2013 announced that, “Lord Neuberger has launched an attack on Theresa May for criticising judges over their failure to deport foreign criminals.” May, then the Home secretary, had said the failure of judges to take new rules into account meant she would bring in new laws to stop them allowing foreign rapists and violent criminals to stay in Britain by claiming a right to a family life. Lord Neuberger, then President of the Supreme Court, had labelled May’s strongly-worded criticism of immigration judges as “inappropriate, unhelpful and wrong”. He continued, “I’m concerned about it because I think it’s inappropriate and unhelpful for ministers to attack individual judges or groups of judges.” The Home Office declined to comment on Lord Neuberger’s remarks.
Was either piece of criticism justified? Lord Neuberger was criticising May for her own criticism of the judiciary. He was doing so as part of a defence of the role and independence of the judiciary. The real issue here is why Lord Neuberger was taking that step when it is the mandatory duty of the Lord Chancellor (i.e. May’s fellow cabinet member, Chris Grayling MP) to protect and uphold the independence of the judiciary1.
What of political respect for judicial independence? By the press, politicians and the Lord Chancellor?
- (Miller) v Secretary of State for Exiting the European Union  UKSC
In a joint judgment of the majority, the Supreme Court holds that an Act of Parliament is required to authorise ministers to give notice of the decision of the UK to withdraw from the European Union.
The 2016 referendum is of great political significance. However, its legal significance is determined by what Parliament included in the statute authorising it, and that statute simply provided for the referendum to be held without specifying the consequences. The change in the law required to implement the referendum’s outcome must be made in the only way permitted by the UK constitution, namely by legislation.
Withdrawal makes a fundamental change to the UK’s constitutional arrangements, by cutting off the source of EU law, [78-80]. Such a fundamental change will be the inevitable effect of a notice being served . The UK constitution requires such changes to be effected by Parliamentary legislation .
The decision in the Miller case was significant not just for constitutional reasons, but for the response it prompted in some sectors of the news media. The judges of the divisional High Court were labelled “Enemies of the People” by the Daily Mail in its banner headline and the Daily Telegraph described the effect of the judgment, as “[t]he day democracy died”. Attacks were personal as well as professional: one judge’s sexuality being cited [REFERENCE NEEDED] (on what basis that might be relevant is inconceivable: it was an appalling and unjustifiable editorial decision in my view).The judges also faced some strong criticism from prominent politicians, for example from the Business Secretary, Sajid Jived, who commented that “This was an attempt to frustrate the will of the British people and it is unacceptable.”
This led to a defence of the judges. See for example the Bar Council statement of 4 November 2016, “Judiciary must ensure rule of law underpins our democracy” . Noticeable by her silence was the then Lord Chancellor Liz Truss. Attention turned to her absence. Criticism of her was not silenced by a three-line press release issued somewhat tardily after the judgment that backed the independence of the judiciary but stopped short of condemning the professional (and personal) attacks on senior judges over the Brexit ruling.
On 25th October 2018 Lord Hain MP used parliamentary privilege to name Sir Philip Green despite (or rather in flagrant breach of) the court injunction that banned the Telegraph (and media) from reporting the billionaire’s name in an on-going case. Lord Hain told the Lords “I’m not disputing judges’ responsibilities – that’s a matter for the judiciary. I’m discharging my function as a parliamentarian.”1
In March 2011, Liberal Democrat MP John Hemming used parliamentary privilege to reveal the existence of an injunction that banned a man from talking about court proceedings in which he was involved, including to his MP. Hemming also revealed that former RBS chief Sir Fred Goodwin had obtained an injunction banning the media from calling him a banker.
This led to a rebuke from the Lord Chief Justice, Lord Judge: “But you do need to think, do you not, whether it’s a very good idea for our law makers to be flouting a court order just because they disagree with a court order, or for that matter, because they disagree with the law of privacy which Parliament has created. It’s a very serious issue in my view.”2
This is not a phenomenon of recent years. Ryan Giggs’ identity was revealed in the House of Commons in 2009 via a parliamentary question asked by Paul Farrelly MP despite him having the benefit of a ‘super injunction’ granted by the court.
From just these few sample cases (there are many more) it is clear that both the Lords and the Commons have failed in the tradition to respect the province of the law and the judiciary. Moreover, the trampling of that boundary wall has not been confined to junior ministers. On 24th April 2009, the then Prime Minister David Cameron expressed concern about the use of ‘gagging orders’, saying that Parliament should determine privacy law and not judges. He spoke after Mr. Justice Eady granted a worldwide permanent ban on publication of photos of a television presenter.
In a well-argued article by Patrick O’Brien entitled ‘Enemies of the People”: Judges, the media, and the mythic Lord Chancellor’ 3, the author rightly says that there is a long history of robust criticism of judges in the UK and then proceeds to give this sample list. This history led to Lord Dyson, in a speech in 2014, to conclude that the convention precluding criticism of judges by government ministers no longer existed4. I agree.
As Mr O Brien points out in his excellent article there are benefits of robust criticisms of the judiciary but there are limits to what can be tolerated:
“Criticism that is highly personalised, that incites hatred of a particular judge or of judges as a profession, may lead judges to feel unable to do the job “without fear or favour” as the judicial oath puts it. There is a good case for saying that the “enemies of the people” headline falls into this category. In evidence to the Lords Constitution Committee in March 2017, the Lord Chief justice cited fears arising out of the headline and the surrounding media and public atmosphere. It is not understood how absolutely essential it is that we are protected, because we have to act, as our oath requires us, without fear or favour, affection or ill will. It is clear in relation to the first part of the Article 50 case that the claimant had been subjected to quite a considerable number of threats, and it is the only time in my judicial career that I have had to ask the police to give us a measure of advice and protection in relation to the emotions that were stirred up. It is very wrong that judges should feel it. … I have never had that problem before.”1 [my emphasis]
As Professor Graham Gee pointed out in her through provoking article ‘A Tale of Two Constitutional Duties: Liz Truss, Lady Hale, and Miller’1, one consequence of the 2005 reforms is that the judiciary today has a much greater responsibility to defend their own independence and they have ample means to do so, including:
(a) an intervention by a senior judge (for example, a head of division or the very able Senior President of Tribunals, given that the Lord Chief Justice and Master of the Rolls both sat in the High Court in Miller);
(b) a ‘media panel’ of judges who are trained to speak publicly on controversial issues of public salience;
(c) the Judicial Office’s Press Office can pro-actively engage with the media in ways akin to the Supreme Court’s Communication Team;
(d) a retired senior judge such as Lord Judge or Lord Woolf could be a ‘proxy’ available to the media on both the day the judgment was released and the few days after; and
(e) the Lord Chief Justice can raise the press coverage in the occasional meetings that he has with newspaper editors.
Lord Neuberger addresses what scope the post-2005 changes give the judiciary in his Holdsworth Club 2012 Presidential Address2:
He suggested some principles that might apply that might guide a judge entering what might be perceived as the political arena1 :
‘First, it seems to me only proper that judges, with their wisdom and experience, should be free to comment extra-judicially on a wide range of issues. In doing so they play an educative role….
Lord Neuberger was seeking to give guidance on the balance a judge has to strike between maintaining the distance from the public and politicians that enables them to maintain authority through detachment and independence whilst also engaging with the society it is appointed to serve.
He intervened to ‘hold the balance’ between the judiciary and the legislative. He sought to reaffirm the principal of respectful debate between the judiciary and executive/ legislature.
I can find no such measured guidance of expression of good intent from the legislature and executive; rather the reverse, in fact. Given that actions speak louder than words, it is difficult to avoid the conclusion that the judicial restraint and reason exemplified by Lord Neuberger on behalf of the judiciary is not mirrored by Parliament or the government. If the mutual respect for each other’s roles and duties still exists, it appears to be valued by the one side of the partnership more than the others. Is this a consequence of the judges exercising their power (given by Parliament) to hold government to account and to apply the law with the independence that is part of their judicial oath?
‘I, (name), do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth in the office of (office), and I will do right to all manner of people after the laws and usages of this realm (or colony), without fear or favour, affection or ill will’ 1
The premise of separation of powers is an important statement of principle but its absoluteness as a rule is questionable. The degree to which a judge or a politician decides to address the duties and responsibilities of the other is as individual as the people involved are. The judicial decision to intervene or not in the exercise of the government of its powers, and how that is justified, is a matter for the judge concerned carrying out that duty with intense focus and integrity with intellectual rigour. I consider that they do so fully cognisant of the point at which their power ends and that of Parliament (re)starts. Some senior judges are prepared to go further than others in making themselves accessible to the wider professional and public. Again, that is more a matter of personality than professional rule.
Given the paralysed state of our government whilst it struggles with Brexit and leaves the business of daily government a poor relation, the courts continue their daily work, addressing matters big and small. The decisions of our senior law lords and ladies are intellectually rigorous, articulate and transparent. I would rather place a decision of importance in their hands given the current state of political debate than a politician’s, to be frank. I for one am grateful for their robustness, boldness and independence.
This article is an edited version of that delivered by Professor Delahunty QC as Gresham Professor of Law on 7.3.19.
Jo Delahunty QC (copyright 2019)
Barrister 4 Paper Buildings, Gresham Professor of Law
3 Re A (a minor) (fact finding; unrepresented party)  EWHC 1195 (Fam), para 60 and 63
2 The Law Society, 27 June 2011.
3 Lord Neuberger’s Holdsworth Club 2012 Presidential Address – “Where Angels Fear to Tread” (2 March 2012)
1 The word’ must’ is used in Constitutional Reform Act 2005
3 https://radar.brookes.ac.uk/radar/file/a7666467-7a26-4600-89b5-da16ecda5055/1/fulltext.pdf please take the time to read this in full. It covers much ground I could not deal with here: it is well researched and well argued
4 Lord Dyson, “Criticising Judges: fair game or off limits?’ Third Annual BAILII Lecture, 27 November 2014.
1 Lord Chief Justice, Lord Thomas, evidence to the House of Lords Constitution Committee in March 2017: fn.54. O Brien : page 9 quoting
2 Para 34-44
1 Para 44-50