Why judges should never rule on politics
The Brexit case revealed the depth of the crisis of democracy.
On 3 November a legal contest concluded. It took place in court, involved 24 lawyers making legal submissions over three days, and resulted in a legal judgement from three judges. If this contest had been over who should inherit the deceased’s estate, or whether the homicide was murder or manslaughter, the judgement would not have been frontpage news, with headlines like ‘The judges versus the people’ (Daily Telegraph) and ‘Enemies of the people’ (Daily Mail).
But these judges had not just delivered a verdict on the finer points of civil or criminal law. Nor were they merely interpreting a law passed by parliament. In fact, they weren’t even giving a judgement on an issue that called for any legal expertise. No, these judges gave a judgement on the highly political issue of withdrawing Britain from the European Union; more specifically, on whether parliament or the government had the right to pull the trigger on Article 50, which starts the Brexit process.
The Brexit court case reveals something profound and disturbing about British democracy: the sidelining of politics in favour of law. A political issue, suitable for resolution by political actors, has been treated as a legal issue, to be determined by lawyers. A dispute between the three political components of a democracy – parliament, government and the people – has been resolved by the one component that should be beyond politics: the judiciary. And an issue that should be resolved by applying modern-day political principles has been resolved with legal precedents dating back hundreds of years.
A properly functioning democracy needs a firm boundary between politics, which resolves issues democratically, and law, which does not. Politics is concerned with making policy, whereas the law tends to deal with its implementation. It should be for politicians to make the law and for judges to interpret it. Political issues often engage a number of different concerns and interests requiring resolution by political judgement, whereas law is usually concerned with less contentious issues.
But wherever the boundary between politics and law is drawn, the issue of who fires the Brexit starting gun (parliament or government) falls clearly on the political side. Britain’s relationship with the EU involves issues of trade, migration and sovereignty, issues that don’t get much bigger or contentious. That should be reason enough for the courts to butt out. But to this politically charged mix of issues we should add that 33million citizens voted recently in a referendum on the UK’s relationship with the EU, an issue so contentious that the result of the referendum led the prime minister to resign. Oh, and for good measure, we should also add to the mix the fact that the timing and terms of Britain’s departure from the EU have split political parties, businesses and households. If Britain’s post-referendum relationship with the EU isn’t a quintessentially political issue, then nothing is.
In fact, the government’s original position in the Brexit court case was that the issue was, due to its political nature, not suitable for legal determination. The ‘decision to withdraw from the EU is not justiciable’, it stated in its written argument to the court, because ‘it is a matter of the highest policy’. It then added that triggering Article 50 ‘is a matter of high, if not the highest, policy; a polycentric decision based upon a multitude of domestic and foreign policy and political concerns for which the expertise of ministers and their officials are particularly well suited and the courts ill-suited’.
But the government’s principled stance was abandoned during the court hearing. So, instead of spending three days addressing the court about where politics ends and the law begins, the government’s lawyers consented to a legal judgement over ‘a matter of high, if not the highest, policy’. In other words, the one argument that could have preserved politics for politicians was not put forward. From this point on, it was game over for anyone concerned with a proper constitutional balance between law and politics, for judges can only rule on points that are argued before them.
The court was left with little option but to rule, as it did, that ‘in these proceedings [the court] is only dealing with a pure question of law’. Putting it simply, it treated ‘a matter of high, if not the highest, policy’ as a legal rather than a political issue. The government gave the court the right to give a legal judgement on ‘a polycentric decision based upon a multitude of domestic and foreign policy and political concerns’, as if such an issue was in substance on a par with a divorce between a husband and wife.
This should trouble any democrat. When political questions are turned into legal questions, democracy is impoverished. The lay person who ventures an opinion is disenfranchised for not being a lawyer. Elected representatives in parliament who argue their corner will be silenced because judges, not politicians, get to resolve legal issues. And debate between the people and politicians, a relationship that is democracy’s umbilical cord, becomes futile, because, as the High Court pointed out, quoting the constitutional jurist AV Dicey: ‘The judges know nothing about any will of the people.’ Whereas the High Court cited Dicey in order to claim that it was dealing with ‘an issue of pure law’, Dicey’s real insight is that political issues, like Brexit, should stay in the court of public opinion, rather than a court of law.
From time to time, big constitutional issues arise. But they do not need to be resolved legally. Indeed, they cannot be resolved legally. When Henry VIII split with the Catholic Church, he didn’t do it by sending a law officer to court to present a legal case; he did it by asserting his political authority as the Crown in parliament. The Glorious Revolution of 1688 did not result from the citation of legal authority dating back hundreds of years — it resulted from a ‘convention parliament’ which made new constitutional conventions. When the House of Lords blocked the so-called ‘People’s Budget’ in 1909, the Liberal Party didn’t petition the courts, it enlisted the power of the people to win two General Elections in 1910 in order to assert popular power in the Commons over aristocratic power in the Lords.
If it wasn’t for legal intervention, the current constitutional crisis would have been resolved politically, through a continuing dialogue between parliament and government – each side drawing a source of power and responsibility from political argument and engagement with the people. Unlike the law, politics is directly attuned to the will of the people. And by proceeding with the consent of the people, parliament and the government would have resolved their differences. But the Brexit court case has killed that possibility. Constitutional arrangements have now been determined not by political actors, but by judges. As Sir Stephen Laws, a former First Parliamentary Counsel, observes, the ‘notion that parliament needs the courts’ help to manage its relationship with government actually undermines parliamentary sovereignty and wrongly puts unaccountable judges in overall control of the whole constitutional system’.
The court, and those who defend the view that ‘unaccountable judges’ should be in ‘overall control’ of the constitution, make two arguments: one specific and one general. First, they claim that process (who triggers Article 50) is a legal issue, whereas outcome (leaving the EU) is a political issue. This is disingenuous, for those who control the process control the outcome. The act of parliament that will now be required before Article 50 can be triggered could be voted down, delayed or made conditional. Jeremy Corbyn has already listed his conditions for supporting a Brexit bill, and many other Remainers, particularly in the unelected House of Lords, are salivating at the thought of clauses they will be able to insert. The claimants in the Brexit case did not go to court in order to secure a one-line Brexit bill authorising the government to trigger Article 50, immediately and unconditionally. They were always far more interested in outcome than process. And when it comes to Brexit, process is as political as outcome.
Those who support the court’s judgement often say that liberal democracy is premised on the rule of law. And indeed it is. But liberal democracy is also premised on the rule of law having limits. Just as liberal democracy would be undermined if a politician determined the prison sentence of a particular burglar, so it would be undermined if a judge passed judgement on the wisdom of a statute. A rule of law without limits readily morphs into the rule of the law. And when this happens, the law is seen not as liberating, as bringing order to an activity suitable for legal regulation, but as something emasculating, as something that puts judges in charge of politics.
In an attempt to justify their right to rule on Brexit, the High Court appealed to the rule of law. It stated that ‘the courts have a constitutional duty fundamental to the rule of law in a democratic state to enforce rules of constitutional law in the same way as the courts enforce other laws’. This sentence leaves many questions unanswered. Why is there a constitutional duty for the court to regulate a political issue between parliament and government? Why does the rule of law extend to regulating such an issue? On what basis is this issue ripe for legal enforcement? Those four words, ‘the rule of law’, do not represent an argument in themselves. It is an attempt to hide behind a high-sounding mantra.
All constitutions have three components in the form of a legislature/parliament (to make the law), executive/government (to carry it out) and judiciary (to resolve conflicts on what the law is). But in a democracy there is a fourth component in the form of the people. In a properly functioning democracy the people provide the force that both motors and oils the legislature, the government and the judiciary. But ours is not a properly functioning democracy, for each of these three constitutional actors now finds it increasingly difficult to connect with the will of the people.
By ruling on the Brexit case, judges have taken a dangerous step towards making a virtue out of a fracture. Instead of confronting the disconnect between the people and their rulers, the Brexit judgement will cement it. For in a liberal democracy, judges are supposed to be beyond politics, their judgements are supposed to reflect not the will of the people, but the requirements of the law. But they can only play this role if they remain beyond the fray. Their constitutional position is jeopardised when they are used by a disconnected political elite that would rather shunt a political issue into the courts than thrash it out in parliament.
There are no winners in the Brexit case. The government has shown itself unable to govern. Parliament has shown itself to be so enfeebled that its ‘supremacy’ has to be sustained by the judiciary. And judges have been catapulted into a political crisis that they are ill-equipped to handle. As for the people, they have been sidelined – told that political debate must yield to a legal judgement that concluded the referendum result was merely advisory.
Ultimately this constitutional crisis can only be resolved by reconnecting the government, parliament and the judiciary with the people. The government needs to cultivate a popular will that would give it the force to govern. Parliament needs to re-establish its dialogue with the people, whose will it is supposed to represent. And judges should get back to doing what they are supposed to do: ruling on the law, instead of making it. None of this is going to happen in the short term. The only thing that is likely to result from next month’s hearing in the Supreme Court is a widening of the constitutional rift between the government, parliament and the judiciary on the one hand, and the people on the other.
Jon Holbrook is a barrister. Follow him on Twitter: @JonHolb.
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