Why democracy must reign supreme

Supreme Court judges have no right to rule on political matters.

Jon Holbrook

Topics Brexit Politics UK

On Tuesday, 11 Supreme Court judges ruled in unequivocal terms that the prime minister’s decision to prorogue parliament was unlawful. A political decision taken by the head of the British government was declared void and of no effect by a court. Never before has a political decision of this magnitude been struck down by British judges. The decision is as unprecedented as it is significant, with the leaders of most opposition parties calling on Boris Johnson to stand down. And yet, so far as the government is concerned, this is a court judgement that amounts to little more than a temporary setback. The prime minister has said the decision was ‘wrong’, but there have been no government claims that judicial power has gone too far and needs to be reined in.

As I have argued previously on spiked, the legal sphere has been expanding for decades as the political sphere has contracted. For the health of British democracy, it is time to kick judges out of politics. If ever there was a legal judgement to exemplify this problem, it was the one delivered on Tuesday. Speaking on Radio 4’s The World at One, the constitutional historian, Lord Peter Hennessy, observed how Tuesday was the day when ‘the constitution really did shift’. He argued that ‘the architecture of the British constitution will never be the same again’ because ‘the Supreme Court’s reach… now penetrates the most intimate relationship in the British state, that between the head of government, the prime minister, and the head of state, Her Majesty the Queen.’

In short, Tuesday’s judgment showed that there is now no political issue upon which the judges are not prepared to rule. If an exercise of the prerogative power to prorogue parliament can be set aside by judges, then almost any political decision can be. But while academic commentators can see the judgment’s significance, the political class cannot. Even though the judges have set themselves up as the ultimate arbiters of political decision-making, the very people most affected — politicians — have little criticism to utter.

Indeed, in the wake of the judgement much of the political class has gone into overdrive to defend the judiciary. The government’s lord chancellor, Robert Buckland, claimed that ‘our world-class judiciary always acts free from political motivation or influence’. Others went out of their way to silence any criticism of judicial rulings, no matter how muted. The best that Downing Street could muster was the unattributed view that ‘we think the Supreme Court is wrong and has made a serious mistake in extending its reach to these political matters’. Yet, even this went too far for the former Tory lord chancellor, David Gauke, who tweeted: ‘This is not on. A clear attempt to undermine respect for the judiciary… Not how a government should behave.’

This non-debate on judicial overreach speaks to a profound problem with today’s political class. Over many years politicians have found themselves unable to connect with the public. Politicians lack the credibility, the ideas, and the personalities that can enthuse their electors. And as power has drained from them so it has vested in judges. The law is attempting to fill a void that an exhausted political class has created.

On Tuesday, Lady Hale, the Supreme Court president, delivered a speech that was coherent, captivating and important. When did you last hear a politician deliver a speech with those qualities? Certainly not from the former prime minister Theresa May, a politician best remembered (or forgotten) for her inability to connect with an audience. And while her replacement, Boris Johnson, is more engaging, he has yet to deliver a speech with anything like the content or significance of Baroness Hale’s Tuesday peroration. This isn’t a left or right thing — when confronted with a TV microphone Jeremy Corbyn, Nicola Sturgeon and Jo Swinson all have a remarkable ability to persuade legions of viewers to hit their remote-control mute buttons.

Judges appear to have ideas and principles that command respect. They talk of rights, equality and justice. Starry-eyed undergraduates want to be campaigning solicitors and human-rights barristers who make bad things stop and good things start. Most politicians, on the other hand, no longer have the language, words and principles to enthuse the voting public. The historic and competing political visions of liberty, the free market, democracy and socialism have become hollow. Politics as a vocation or discipline appeals to an increasingly narrow stratum of policy wonks and wannabe MPs, all with a motivation that is often hard to fathom.

In the legal sphere, things happen. When Lady Hale says the prorogation of parliament is null, void and of no effect, parliament reconvenes, almost immediately. When Theresa May says Britain is leaving the EU, Britain remains in the EU. When Boris Johnson says Britain is leaving the EU on 31 October, almost nobody believes him. Jeremy Corbyn can’t even tell us whether he wants to leave the EU. With judges, their word is their deed. With politicians, their word is best forgotten.

It seems unlikely that anybody has written a children’s book celebrating the life and career of a leading politician that ‘will aim to inspire primary-school children’. This is not so with the UK’s top judge, Lady Hale. Judge Brenda: Equal to Everything will be published later this year to tell ‘an inspirational story of Lady Hale’s achievements’, so as to ‘introduce children to the legal system, the concept of equal access to justice, the importance of the rule of law and how it affect us all’. This ‘beautifully illustrated children’s book’ will be published ‘thanks to the generous donations made by many individuals’ who want ‘to make sure we are getting our message over’.

The problem with law’s esteemed constitutional status is that it is based on a false prospectus. Law is designed to deal with issues that are politically uncontentious. Law needs consensus and it needs politicians to argue their way to finding that consensus. Where consensus exists law can provide a framework for dispute-resolution. But in the absence of a consensus, law cannot create one, and if it tries to then disputes merely assume a legal form. Law’s proper reach extends to technical disputes over income tax, contracts, probate law and other issues that are of concern to the litigants, but not the wider public.

When law deals with controversial issues, law’s hallmark of being dispassionate and even-handed is lost – despite the protests of present and former lord chancellors. No matter how many times Lady Hale claims that Tuesday’s judgement was not about Brexit, the public may conclude otherwise. It is clear that the case was brought by those seeking to stop Brexit and the judgment was cheered by Brexit-loathing activists. But for each Remainer who cheered, there was another Leaver who doubted the objectivity of law. When law rules on a political controversy, the law becomes politically controversial. In his recent Reith lectures, the former Supreme Court judge, Lord Jonathan Sumption, noted how ‘law is now the continuation of politics by other means’.

Political issues need political solutions; they cannot be addressed with legal tools that are designed to interpret statutes or fill interstitial gaps in well-established legal frameworks. When legal rules designed for regular circumstances are bent to address irregular circumstances the rule of law becomes the rule of lawyers. The principles and coherence that are supposed to be law’s hallmark morph into the pragmatism and discretionary judgment that law abhors.

Tuesday’s Supreme Court judgement began by noting that the nature of the task facing it has never arisen before. But this was not true. Campaigners often seek to take their political arguments into court, but, because they are political, the courts normally shut the door, as the High Court did, in this case only two weeks earlier. It slammed the door on Gina Miller, Baroness Chakrabarti and Sir John Major, for the principled reason that their claims ‘were inherently political in nature’.

The Supreme Court, on the other hand, bent the rules, or, as Lord Sumption put it, the court made a ‘revolutionary’ decision that ‘makes the courts the ultimate arbiters’ of a political matter. And having abandoned the principle of declaring political questions to be non-justiciable, the court will in future be expected to adjudicate on these political claims. And it will have to do so without any consistent standard, for as the High Court observed, political judgements are ‘not something the court can judge by any measurable standard’.

Law’s apparent ability to turn word into deed is also illusory when it comes to politics. It is easy to say ‘no’ in order to stop something, which is all that the court did on Tuesday: No, Parliament has not been prorogued. It is much harder to say ‘yes’, in order to start something. Only a diehard Remainer can seriously believe that the reconvening of parliament has brought a Brexit solution any nearer. When it rules on legal issues, the law can solve. But when it enters the political fray, the law can at best frustrate, it cannot resolve.

As for Lady Hale’s ‘beautifully illustrated children’s book’, it’s pleasing to know that the Supreme Court president is ‘thrilled at the idea of making it into a picture book to entertain and inspire young people’. But the likelihood is that the book will go down better with woke teachers and parents than children. In a few weeks’ time, Lady Hale will have been forgotten by the millions who watched her recent courtroom address. Judges are not memorable. They are supposed to be dispassionate dispensers of justice, anonymised under wigs and gown. Litigants need to know of their judgements and orders. But the wider public does not need to know their names, faces or stories.

Tuesday’s Supreme Court judgement highlights the extent of law’s inappropriate reach. It ought to trigger a proper debate about the problem of judicial expansion. On Tuesday, as Lord Hennessey pointed out, ‘the constitution really did shift’. But do we want a constitution where 11 judges can reign supreme on political issues? Or do we want a constitution where political decisions are taken by politicians in the political sphere? Politicians need to rediscover their vision and values. They could start by reasserting the primacy of politics and the right of politicians, who draw their power from the people, to be in charge. It would do politicians no harm to make the case for judges, who draw their limited power from the rule book, to be reminded that in a democracy they have no right to rule on politics.

Jon Holbrook is a barrister. Follow him on Twitter: @JonHolb

His essay on ‘The Rise and Fall of the Rule of Law’ is published in the book From Self to Selfie: A Critique of Contemporary Forms of Alienation, paperback £22.99.

Picture by: Getty.

To enquire about republishing spiked’s content, a right to reply or to request a correction, please contact the managing editor, Viv Regan.


Marvin Jones

29th September 2019 at 2:30 pm

I really know zilch about the law and my reasoning and opinions rely entirely on logic and common sense.SO! how flawed must this entire set up be, and how accurate is the adage ” the law is an ASS” be, when two groups of these supposed law gods that we hold in such high esteem, can come to different decisions and interpretations of a case that they should not apply to them, but used by unscrupulous rich Cretins to trample on and discard the democratic decision of 17.4 million citizens.

Janet Mozelewski

27th September 2019 at 12:00 pm

I wonder how long judges, especially Supreme Court ones, will remain ‘anonymous under their wigs’ after this ruling? I remember when the same could be said of The Speaker. The wig was dispensed with….and we know now that being anonymous and impartial went with it. Bercow flaunts himself and is the very opposite of either. He is instantly recognizable.

John Millson

27th September 2019 at 9:00 am

Obviously the UK now needs a codified constitution.
MPs need to be talented, responsible & articulate as a bare minimum. Chalartans and sloths shouldn’t be selected. MPs need to be ‘above average’ in some way.

Owen Morgan

28th September 2019 at 2:39 am

“Obviously the UK now needs a codified constitution.
MPs need to be talented, responsible & articulate as a bare minimum. Chalartans and sloths shouldn’t be selected. MPs need to be ‘above average’ in some way.”

There are two really bad ideas in just four sentences. I assume “codified” is just a posh word for “written,” in this context (by the way, I do know what “codified” means). How is a written constitution better than an unwritten one? A constitution written by Remainers and one written by Leavers would probably be completely different, but, according to your logic, by the mere virtue of being scribbled, either would be superior to the constitution we have.

As for vetting Parliamentary candidates… No, you don’t actually use that word, but it is pretty clearly implied. There are laws restricting Parliamentary candidacy, but they are necessarily very specific (age, criminal record, that sort of stuff). Otherwise, if you are eligible to vote, you should be eligible to be voted for, or against. I am no bigger a fan of charlatans and sloths than anyone else, but, in a healthy democracy, those should be identified before being selected as candidates, or, failing that, before election. If the charlatan/sloth succeeds, nevertheless, in winning election, it is up to his/her electorate to make do with the candidate it elected and to take stock of the situation at the next opportunity. Given that we have a party system, I do think that a party may, in extreme cases, discard MPs who diametrically oppose fundamental policy, but the selection of candidates should be as close to the grassroots as possible.

MPs do not need to be “above average.” They don’t need to think of themselves as “above average,” either, although, heaven knows, plenty of them already do. I’d be happy with MPs who are sincere, conscientious and diligent. MPs are supposed to give a voice to their constituents, representing local issues on a national stage. In the party system, candidates stand for election on a manifesto and, even if no-one actually reads a manifesto, elected MPs at election time should support the policies which were headlined in their parties’ manifestos, unless they declare their discontent with individual policies beforehand. There’s a split loyalty, but it’s hardly complicated: support your party on the big, manifesto issues of the day; work your socks off for the constituency you represent.

Oh – and when the majority of the electorate supports Brexit on a huge turnout, there is no escape route for MPs who don’t accept the result. Representing a Remain constituency is no excuse for defying Brexit, if you were elected in 2017 , for a party supposedly committed to delivering Brexit.

John Millson

30th September 2019 at 2:56 pm

‘Written’/’codified’. Doesn’t ‘codified’ imply something complex and exhaustive? What’s the problem with that? OK, yes, lets simplify for the sake of it…’written’.
‘How is a written constitution better than an unwritten one?’ Er, re the Prorogation fiasco for example… it seems obvious. We don’t need five weeks to prepare for an official opening of Parliament.
Neither ‘Leavers’ or ‘Remainers’ alone should be ‘writing’ a constitution. We do need ‘specialists’, ‘experts’, sorry.
‘If the charlatan/sloth succeeds, nevertheless, in winning election, it is up to his/her electorate to make do with the candidate it elected and to take stock of the situation at the next opportunity.’ Why should all constituents have to make do with a lousy MP who just happened to be selected by a hard-core, extreme membership of a party they don’t support? MPs need to be able to appeal to wide range of people, certainly in inner city constituencies.
Who wants a glorified apparatchik to represent them? For sure we don’t need pompous, inflated representatives but we need more than weak, servile ‘delegates’. MPs have to represent all their constituents. For that reason they should have some ‘substance’/capability.
MPs should serve for no more than two Parliaments or 10 ten years, which ever is sooner. (I’d stick that in my ‘Constitution’ along with making a PM serve a full Parliament regardless of what their party wanted. That or have an official Deputy Prime Minister candidate at General Elections.)

Vabadus 19

27th September 2019 at 2:19 am

I am a passionate Leaver and have been since I first discovered politics as a teenager, but I am afraid I disagree with this article and almost all the hysterical media output of my fellow Brexiteers about the Cherry/Miller case.

Far from taking it upon itself to judge a political issue, the Supreme Court stated clearly that the prorogation was a legal issue and gave its reasons why. A suspension of parliament that substantially obstructs the carrying out of parliament’s constitutional (i.e. legal) functions is, by its nature, a legal matter, and the executive is evidently not permitted to frustrate the Constitution. This is entirely different from the Court conceding that it is a matter of high policy or parliamentary procedure and declaring that to be justiciable too.

Funnily enough, it is my fellow Brexiteers who take umbrage at the decision not by advancing any legal analysis, but for their own political ends — the very conduct they accuse of the 11 justices. This might be forgivable in a layman, but not a practising barrister such as Jon Holbrook.

It is uncontroversial and well-established that executive actions are judicially reviewable and that the scope of the prerogative has been restricted and defined by courts for over 400 years.

Have the courts previously held that exercises of the prerogative can be subject to judicial review?

Yes: Case of Proclamations (1611); Entick v Carrington (1765); CCSU v Minister for the Civil Service (1985); R v Foreign Secretary, ex p Bancoult (No 2) (2008); and many more.

Have the courts previously held that the scope of all legal powers, including the prerogative, are subject to common-law constraints?

Yes (as above).

Have the courts previously recognised parliamentary sovereignty and parliamentary scrutiny as fundamental constitutional principles that determine the bounds of prerogative powers?

Yes: Attorney General v De Keyser’s Royal Hotel (1920); ex p Fire Brigades Union (1995).

The Supreme Court may well be applying legal principles to an exercise of a prerogative power it hasn’t before reviewed, but this is the logical outcome of *already established*, long-standing, orthodox legal principles.

There’s no “new law” here in any meaningful sense. Development, yes, but that’s always what happens in the Supreme Court. It’s part and parcel of the common law method of adjudication: asking how previously decided cases apply to novel factual circumstances.

The common-law system is literally judge-made law, and the scope and existence of prerogative powers, since they are not defined by statute, are those that the courts themselves have determined as remaining in the residue of legal and constitutional authority of the Sovereign.

Notice how Remainers didn’t accuse the Divisional Court, in its ruling in favour of the Prime Minister, of making an overtly political judgment because they were closet hard Brexiteers. Yet given that judicial review is now the norm, the onus would be on the government to show non-justiciability. They failed to do so, and upholding the Divisional Court decision would itself be an unorthodox, political ruling to expand non-justiciability by ignoring precedent and to thus restrict a form of judicial review permissible as long ago as almost half a millennium.

If you don’t like this system, you’re free to advocate a codified constitution and replacing the common law with a continental-style civil code. I, for one, will oppose that.

What is striking about the last three years of Brexit chaos is how loose and fickle people’s purported attachments to institutions and principles are. We have conservative Brexiteers like Rees-Mogg invoking ideas of popular sovereignty as if they were modern-day Wat Tylers, liberal reformists lauding our arcane parliamentary procedures and ancient constitutional principles, and the libertarian Marxist democrats of Spiked are bemoaning the fact that the (unelected) Prime Minister cannot trample all over our constitution to temporarily render the role of directly elected MPs a dead letter.

Everything has been turned upside-down and people — this article by Holbrook being a prime example — seem only to support institutions, principles, and ideas only when they deliver the outcomes they want. And these are outcomes they usually want for their own political convictions, despite accusing judges doing their job by ruling on a matter of constitutional law as being political activists.

I am sick to death of the hypocrisy of both sides and the refusal to cast an unbiased, dispassionate eye at affairs such as the Cherry/Miller decision.

Claire D

28th September 2019 at 7:49 am

That’s interesting Vabadus, what you say seems to be more in line with my thinking and comment on Brenden’s A Tyranny of Judges.

Claire D

28th September 2019 at 8:05 am

It seemed to me then and still does that while I may disagree politically with Gina Miller and John Major (though not always with the latter) that they have the right to take a case to court if they can and desire to do so. Our common law and the way it has developed over centuries can be trusted I think, it may seem to go awry at times but then you see, historically, that in fact it was going in the right direction after all, which is what I was trying to say the other day on A Tyranny of Judges.

Vabadus 19

28th September 2019 at 8:28 pm

I am glad to have found a sympathetic ear at last, Claire! What I omitted to say in my long post was that while I am convinced by the reasoning of the Supreme Court, I in fact disagree with the outcome. Specifically, I accept that the issue is legal, justiciable, and that executive action that frustrates the Constitution must be unlawful; I simply disagree that in this specific case, Boris’s prorogation amounts to such constitutional frustration. The Court took another view, though, and I understand why — it’s not a ludicrously unreasonable conclusion — and respect it. What other Brexiters appear to be doing is demanding that the Court make an overtly political ruling in their favour and condemning them for making an allegedly political ruling against them. This is hypocritical and inconsistent.

Of course, analysing a purely legal argument — and a sound one at that — is entirely separate from the less-than-palatable motivations of the litigants, which is clearly an attempt by the rich to play politics through other means. It strikes me that this judgment might serve as precedent for something that Brexiters would like: perhaps the signing of the Maastricht and Lisbon Treaties was an unlawful exercise of the prerogative (treaty-making powers) because parliamentary sovereignty was frustrated? It might be a harder case to make than Miller’s, but it’s still there and a clever lawyer could make something out of it.

What matters in court cases as much as the practical outcome is the reasoning. It is possible to accept the reasoning but disagree with the conclusion (as I do) or reject the reasoning but agree with the conclusion or to accept/reject both. If the Court stated that the prorogation was purely a parliamentary or political procedure but nonetheless saw fit to intervene, I would agree that this was a revolutionary instance of judicial activism. This is not what happened, but detractors write as if it did. It is as if they haven’t read the judgment at all.

Claire D

27th September 2019 at 12:37 am

Thank you Jon Holbrook, that article has helped me considerably.

I cannot see politicians addressing this problem with the Supreme Court, which has now arisen, under the present circumstances. It’s a bit like expecting a woman in the third stage of labour to arrange a mortgage or something. However, once we have left the EU (she says hopefully) and there has been a General Election, then this problem must be addressed.

The trouble is even then I think we will still be in a state of hiatus for quite a while. Can only hope that some decent potential politicians are out there in the making.

Claire D

28th September 2019 at 7:42 am

Re-think required.

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