Judicial Debate over the Rule of Law

There has been an interesting intervention from Lord Neuberger, President of the Supreme Court on the judicial-executive relationship. In the wake of the High Court ruling on the need for Parliament to be consulted before triggering Article 50 (see earlier posts) you will recall that there was enormous criticism of the relevant judges (most notoriously, The Daily Mail’s ‘Enemies of the People’ front page). Neuberger argues that some of the media coverage undermined the rule of law, a key element of our liberal democracy . This could be useful evidence for Unit 1 Democracy & Participation when considering the common question over how democratic the UK is.

Furthermore, he states that politicians (and we can assume here that he particularly refers to Liz Truss, the lord chancellor and justice secretary) did not defend judges swiftly enough in the face of attacks. This hints of friction between judicial and executive branches (Unit 2 Judiciary).

See more detail on his comments here: http://www.independent.co.uk/news/uk/politics/brexit-daily-mail-accused-undermining-rule-law-supreme-court-president-lord-neuberger-a7582816.html

In response to Neuberger, Michael Gove decided to weigh in on the issue in an article for The Times. Since the article is subscription only, I have selected some sections to give you a flavour of his views.

Gove argues that the judiciary has become more powerful and more assertive in recent years for a number of reasons:

The judiciary overall, and the Supreme Court in particular, is playing a larger and larger part in all our lives. In lectures given while Supreme Court president, Lord Neuberger has explained that judges have become more assertive in the past 30 years for a series of inter-related reasons.

The state has grown, executive power has increased and there is a consequent need for judicial power to grow to restore balance. Especially because the executive’s power over parliament has grown steadily and its appetite for new laws and decrees has not been restrained by the legislature. In addition parliament, having passed the European Communities Act, has given judges the power to rule on whether domestic law is in conformity with EU law and, having passed the Human Rights Act, has invited judges to rule on whether other laws conform to its provisions. Judges, having grown used to an active role in reviewing legislation, are now, whether inside the EU or not, unlikely to relinquish it.

Especially, it would appear, because some judges are so concerned that parliament may shirk its responsibility to develop appropriate laws on contentious issues such as assisted dying that the judiciary will have to step in to fill the vacuum. And, in any case, greater assertiveness overall is consistent with the less deferential approach towards authority taken by today’s judges, who grew to maturity in the intellectual climate of the Sixties and Seventies and who therefore feel less hidebound by tradition than their predecessors.

This is a great summary on how and why the judiciary has become more powerful in recent years (Unit 2 Judiciary).

Gove goes on to express his opinion on this increasingly active and powerful judiciary (which he clearly does not favour):

Speaking for myself, I can see elements both to welcome and, potentially, to feel nervous about in the trend towards greater judicial assertiveness. Temperamentally, I dislike the growth of rule by executive fiat, am unhappy about the constant thirst for new legislation and worry about more powers being granted to government agencies and regulators. As a classical liberal, I’m grateful that judicial review can act as a check on the growth of state power.

I am, however, less happy about judges laying themselves open to the charge that they are deciding that the will of parliament, as expressed in legislation, or indeed the absence of legislation, should be over-ridden or second-guessed. Recent Supreme Court rulings on freedom of information and assisted dying have been criticised as attempts to rewrite statute or petition for new laws in a way that begins to trespass on parliament’s territory.

But whether or not I welcome or deprecate any individual rulings is beside the point. The trend towards the exercise of greater judicial power is an alteration in our constitution. It is, like all the best constitutional change, evolutionary, but it is no less profound for that.

And if our constitutional arrangements have changed, with judges playing a more assertive role, then that will invite a reaction. On one level the public could become more appreciative of the judiciary’s role in safeguarding essential liberties. But that may not always be the case.

The recent High Court ruling on Article 50 certainly inspired something less than appreciation in some quarters. Not least from one or two newspapers. As it happens, I agreed with the court, not the newspapers, on that judgment. So I have some sympathy with the unease expressed by Lord Neuberger at the raucous nature of the criticism. But I fear the judiciary may have to prepare itself for many more jeers from the stalls in the future.

Because the more assertive the judiciary is generally, the greater the chance that it will generate controversy. Which raises difficult questions for all those of us attached to the rule of law.

The effective operation of the rule of law relies on restraint. If parliament legislates incontinently and imposes new restraints on activities such as press reporting, hitherto regulated by professional ethics, then respect for the law diminishes. If the executive allows its agencies to penalise and fine arbitrarily, even if they are protecting the environment or guaranteeing our health and safety, then respect for the law diminishes. And restraint is a judicial virtue as well.

As the government’s Judicial Appointments Commission considers who should replace Lord Neuberger, and others of his colleagues on the Supreme Court, in the months ahead it is to be hoped that they take their duty to promote diversity seriously. Especially intellectual diversity. So that those justices who have been pressing for greater assertiveness find themselves balanced by colleagues who understand that when it comes to judicial power, sometimes less is more.


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