The rise and rise of judicial activism

The Supreme Court’s striking down of prorogation confirmed that judges have too much power.

Luke Gittos
Columnist

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Topics Brexit Politics UK

In the aftermath of the Supreme Court decision that Boris Johnson’s prorogation of parliament was unlawful, it was immediately deemed unacceptable to criticise either the decision itself or the judges who made it. Any questioning of the reasoning of the court was described as ‘undermining the rule of law’. There has been a bizarre veneration of the judges, too, particularly the president of the court, Lady Hale. Sales of brooches in the shape of insects and arachnids have soared as a result of Hale having worn a spider brooch when she delivered the court’s decision.

Thankfully, not everyone is following suit. Last week, Oxford professor John Finnis published an excoriating review of the Supreme Court decision. The judgment did not, in Finnis’s view, protect the sovereignty of parliament. Rather, it protected a practical opportunity for both houses of parliament to scrutinise the government. This practical opportunity had then been ‘re-described’ by the court as the ‘principle of parliamentary accountability’, which would normally be protected by long-standing conventional, rather than legal, protections. And by conventions that are ‘ultimately policed by the electorate’, said Finnis. In other words, the court disregarded longstanding democratic and political conventions and it essentially redefined parliamentary sovereignty.

Finnis’s paper is useful for understanding how the Supreme Court’s reasoning marks a significant constitutional shift. However, in order to understand why the court ruled in the way that it did, it is also important to consider how radically the judiciary changed during the 20th century. The Supreme Court’s decision was a long time coming. Kate Malleson’s book, The New Judiciary, published in 1995, charts the changes in the judiciary. Between 1880 and 1960, Malleson notes, judges effectively removed themselves from sensitive areas by rejecting any role in determining the legality of administrative actions. Consequently, judges enjoyed a high level of authority and status. By removing themselves from the sphere of politics, they became insulated from public scrutiny, meaning their prestige flourished.

In the 1970s and 80s this changed. The doctrine of judicial review – the mechanism through which a judge in a senior court can strike down as unlawful a decision taken by any public body – began to expand. The number of judges also increased. In 1970 there were 288; in 1998 there were almost 3,000. It is in the 1980s that the judiciary took on a greater role in public decisions.

In 1985, Lord Roskill said there had been a ‘radical change’ in the character of the judiciary, illustrated by an ‘upsurge of judicial activism’ (1). The power of the executive was becoming increasingly subject to judicial intervention, and this in turn began to influence how ministers and public bodies made decisions. In 1987, the civil service published the first edition of The Judge Over Your Shoulder, which advised ministers and civil servants on how to avoid judicial reviews.

The judiciary gradually became more assertive in its supervision of the activity of the executive. In 1985, Lord Roskill noted how prerogative powers ‘are not, I think, susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process’. But between 1994 and 2006, a line of authority emerged in which the courts decided that they could intervene in cases involving a range of prerogative powers. These included the prerogative of mercy and the refusal of passports. These cases were relied upon by Gina Miller’s lawyers to illustrate judicial willingness to monitor the conduct of the executive.

This assertiveness was partly encouraged by parliament. In the 1980s, the Conservative government, led by Margaret Thatcher, was embroiled in conflict with the judiciary over criminal sentencing. This was viewed by many as a reckoning between the authority of government and the role of the judiciary. Following its electoral defeat in 1992, the Labour Party began focusing on constitutional reform as a way of tipping the political balance in favour of the judges.

Labour’s 1997 manifesto promised to ‘modernise’ the institutions of government. This would include the transfer of aspects of the House of Lords – then the most senior court in the country – to a new Supreme Court based in a building opposite Westminster. New Labour also introduced the European Convention on Human Rights into English law through the Human Rights Act of 1998. This, too, represented a major transfer of power from parliament to the judiciary. Labour ministers justified these changes as a way of blocking an ‘elective dictatorship’, a phrase used in the late 1970s by Conservative peer Lord Hailsham to describe the excess of power vested in the executive by the UK’s unwritten constitution.

Since its creation, the Supreme Court has proven itself willing to assert its power. In doing so, it has implicitly questioned and challenged the authority of the executive. In 2017, the court quashed the introduction of fees in the Employment Tribunal, which was widely reported as a ‘victory for employment rights’. The Lord Chancellor, a government minister, had introduced an order which significantly increased the fee for bringing a case in the tribunal. The court found that the Lord Chancellor could not ‘impose whatever fees he chooses’ and said there was a ‘real risk that persons will effectively be prevented access to justice’. This judgement was emblematic of the shift in political and judicial authority.

This judgment and others are political. Not because they support a particular political party. As JAG Griffith noted in his 1977 book, The Politics of the Judiciary, judicial decisions are ‘political’ in the broader sense that they make decisions about which public policy outcomes should be prioritised. In the Employment Tribunal decision, ‘access to justice’ took precedence over the democratic authority of the Lord Chancellor to reduce the number of claims that the tribunal heard. Had the same case arisen in the 1920s, say, it is likely that the authority of the minister to make inherently political judgements would have won out.

The Supreme Court judgment in the prorogation case is a culmination of a historical trend in which the judiciary has taken a greater role in politics. This judicial activism has significant implications for the place of our elected representatives in our unwritten constitution. An increasingly interventionist judiciary represents a new layer of unaccountable power in British politics at the expense of the authority of us, the voters. That is bad for democracy. Recognising and critiquing this development is not to undermine the rule of law – on the contrary, it is an essential first step in recovering democratic ideals and returning law to its normal territory.

Luke Gittos is a spiked columnist and author of Why Rape Culture is a Dangerous Myth: From Steubenville to Ched Evans. His latest book, Human Rights – Illusory Freedom: Why We Should Repeal the Human Rights Act, is published by Zero Books. Order it here.

(1) CCSU v Minister for the Civil Service [1985 H/L]

Picture by: Getty.

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Comments

Linda Payne

6th October 2019 at 6:03 pm

Looks like we’re heading towards some constitutional bill of rights as the executive and judiciary are now showing their muscle; this will of course only benefit the elites and those with money because legal aid is virtually non existent, but on paper it will look oh so democratic when we really know what the elites think of democracy, either the govt or the courts will stop Brexit because the process will just drag on and on and people have had enough

Aunty Podes

5th October 2019 at 1:52 am

Judicial activism – just another step in the apparently inexorable march of the leftist control freaks towards domination and world rule.
WE MUST NOT ALLOW THEM TO SUCCEED

L Whiting

6th October 2019 at 10:26 am

I do not care about so called Leftists like the Labour Party who are really a Right Wing political party because the err towards authoritarianism (political correctness and positive discrimination)…
The Judiciary should not have interfered with the Crown which they are supposed to serve. If the Queen is asked to agree to something like the Liberal elections of 1910 and 1911 then the last word is the monarchs. The Judiciary are subservient to the Crown. Why this was missed confounds me.

Marvin Jones

6th October 2019 at 12:35 pm

That is the beauty of “interpretation” see it the way it best suits one’s views. Infallible, it is not!

Thomas Swift

4th October 2019 at 11:48 pm

The principle of the rule of law has morphed into the rule of lawyers. The article from UK Law Gazette to which I have linked below is very revealing. “Lawyers must stand against populism”. Seems the legal profession now regards itself as a ruling class, rather like a new aristocracy. They have a right to rule over us because….well, they are lawyers.

Even more infuriating is the inference in the article that what they refer to as “populism” is a threat to democracy. It makes me wonder what they think of as democracy. What does it look like to them?

https://www.lawgazette.co.uk/news/iba-2019-lawyers-must-stand-against-populism/5101575.article

PETER ATKINSON

5th October 2019 at 8:59 am

“Lawyers must stand against populism”

What next I wonder?
Pub Landlords must stand against populism.
Gynecologists must stand against populism.
Nurses must stand against populism.
Traffic Wardens must stand against populism.
Etc.

Geoff Cox

5th October 2019 at 10:03 am

I’ve just read the article and it is pretty grim reading. But check out the few comments btl for a bit of hope.

reality lite

4th October 2019 at 1:49 pm

The obvious solution to conundrum the SC has set is to retrospectively abolish the SC as of the day the legislation created it. So returning the final court of appeal to the Law Lords & negating any precedents it has set. And yes. That does mean any judgements it has handed down would be negated. It would also leave the current SJ’s & their predecessors liable to repay the sums they have earned serving on it. Fitting punishment. And set another precedent. Judges should keep their noses out of democracy or lose them.

Jim Lawrie

4th October 2019 at 12:32 pm

Judicial review has now been taught, more or less uncritically, to law students since the early 70’s. Being almost overwhelmingly middle class in outlook, and conditioned since school to regard themselves as the elite, the idea of tweaking the law via applications to sympathetic judges appealed greatly to their egos, and their condescending outlook.
No regard was given to the legality or morality of the process. The question of whether or not it was compatible with democracy was absurd, because it was developed precisely to check and overrule democracy. Politicians and lawyers and judges who were sure they were right and the electorate were wrong saw The Law as the solution. The end justified the means.

Lawyers, politicians and judges will not stop this. They will career freely and further down this road, sure that it is the right one, and making the rules as they go. Given the impetus of the prorogation ruling, the bandwagon will pick up more passengers, fellow travellers and opportunists by the day. They may soon be asked to decide who will be included and excluded from the next coalition government. They will do so based on what they say is right, not what the electorate said – that is the past.

I’m surprised Mr Finnis did not pick up on the open politicking by lawyers in court that should have been stamped on by the bench. Instead, it was treated with benign and indulgent smiles, the judges well aware that this politicisation was being watched by the nation, and happy with the lessons being handed down. “Like puppets in well rehearsed collusion.”

Stephen J

4th October 2019 at 11:53 am

The last thing that the closed shops that contain the lawyers, the accountants, the doctors and any other qualifying monopoly are interested in is the maintenance of the hard won freedom known to the free world as democracy…

That goes right against the grain.

Geoff Cox

4th October 2019 at 11:49 am

What is happening right in front of our eyes is the slow (and not so slow) alienation of the backbone of the country. The backbone, as I would describe it (and I’m generalising obviously) can be characterised as white, middle/lower-middle class, conservative (with a small c), politically central, christian/lapsed christian, royalist and patriotic. It is hugely ironic that things have changed so much that we are now the revolutionaries calling for change and/or the scrapping of our own ancient institutions – such as Parliament, royalty and now the judiciary. If we are not careful, we will be doing the dirty work of the cultural marxists. Therefore, I think we should be careful always to place the blame on the current crop of incumbents rather than the institutions themselves.

Thomas Swift

5th October 2019 at 12:12 am

Geoff Cox, a god point and I sympathise. But the question is, are those institutions capable of being saved? Or have they been so subverted and compromised that restoration is no longer possible?

Geoff Cox

5th October 2019 at 10:10 am

I think the institutions are ok in themselves. But it is going to take more than a generation to put them straight. A march through the institutions for the left and cultural marxists has reached its flowering. We will unfortunately now have to do the same. Let’s hope the thought police don’t completely shut us down, but for the first time in history, they really have the power to do it. Futuristic nightmares could be just around the corner. The only consolation is that today’s victors may well wake up and discover the thought police at their door – no one will be safe.

Marvin Jones

6th October 2019 at 12:40 pm

Can we then, never create a system that should be right and make common sense and logical decisions without such huge flaws?

Michael Lynch

4th October 2019 at 11:28 am

This intervention is so wrong in many different ways. Firstly, how can a private individual be allowed to reverse a political decision made by a PM; does this not make a mockery of Parliamentary Sovereignty? Furthermore, we have seen from the report this morning re the Met handling of the ‘Nick’ case that search warrants were illegally issued by a Judge. Who judges the Judges? If anything this proves that they are only people who cannot be trusted to be wholly impartial. The ultimate decision regarding the PMs prorogation should have been left to a jury; the British people.

Ven Oods

5th October 2019 at 9:21 am

“search warrants were illegally issued by a Judge.”
I thought it was more that the police had misrepresented what they had, in order to mislead the judge?

Michael Lynch

6th October 2019 at 12:28 pm

Sorry, yes you are right. However, a Judge would have surely seen through the evidence presented. Especially for the type of warrants being requested. I doubt the police fabricated evidence, but were probably rather more economical with it. The point is that even Judges are influenced by the fashion of the times. Even with the current fad for the erosion of the presumption of innocence – especially for white men it seems. These are indeed worrying times.

James Chilton

4th October 2019 at 9:50 am

We know about the dangers of judicial activism. The question is what can be done about it , or rather what will be done about it? My guess is nothing.
.

Jonathan Yonge

4th October 2019 at 9:34 am

Lady Hale’s ‘ickle spider-wider has done the UK constitution a world of good.
Why ?
– because we can now see that some judges may lack good judgement
– because the judicial system is exposed as fault-prone like any other
– because we can now fix the fault we were previously unaware of.

Robert Davies

4th October 2019 at 9:28 pm

Hale’s rather obnoxious and too realistic brooch might well have been worn as a sign of allegiance to the Scottish Judiciary and the emblem of a spider 🕷 for independence.

A Game

4th October 2019 at 9:33 am

Its a strange thing for politicians to have quietly been allowing. Obviously the Tony Blairs of the world, those who profoundly hate democracy and think the people need to be back under the guardianship of an autocracy were the builders/enablers of this, but where were the politicians who disagreed with it? Were they so easily blackmailed by activism? Terrified they’d be “bad” if they tackled what was happening?
There has rarely been a peep out of politicians, even when they’ve disagreed with different rulings at different times, at what slow, systemic changes were being made to our democracies, being a fundamental problem.
Something else they have sleep walked through.
Are they too distracted by party politics? The gossip, the in-house coups, the number crunching, the push and pull of individualism and careerism. They are literally barely paying attention to, well, everything.
And we, the people, have this ridiculous trust in them that they will speak up, let us know what is happening… has any politician campaigned against the judiciary moving into the political sphere? We’re all stuck raging about human rights rulings that are clipping away at civil liberties. We all know its a posturing waste of time, no two rulings the same. But there it sits. We didn’t vote for it, it is trampling on political turf… but on it goes.
Should politicians be paid less? Something has to give with those attracted to politics. They are just letting people down, over and over.

That our new political rule of law is divisive, not cohesive… its gotta get the boot.

Andrew Leonard

5th October 2019 at 4:55 am

Why is Jeremy Corbyn regarded as a radical, but Tony Blair is regarded as a moderate?
Blair is a Marxist, anti-nation-state, open borders, war-mongering totalitarian.
Perhaps he’s regarded as a moderate to save people the embarrassing realisation of what they really voted for, multiple times.

A Game

6th October 2019 at 11:59 pm

Tony wrapped his crap in more attractive paper, with a bow on top?
Corbyn luxuriated in being a back bencher, free to indulge his pet causes, etc, without much attention, I gather. Content with his lot.
Blair, ambitious from the start… always knew to keep it appealing to the centre?
There is an article here about his think-tank – named after himself, of course – that want to go after political parties he/they disagree with. Coupled with his EU love affair, that supreme court, I’m sure Brits can fill in more details of horrible laws passed whilst he was PM… you are very right. He is everything you describe, and there is the possibility that he is a way worse beast than a Corbyn. Hopefully for you lot, you’ll never live to find out how JC in government would compare.

Neil McCaughan

4th October 2019 at 9:26 am

Too much power. And too little integrity.

Christopher Tyson

4th October 2019 at 9:17 am

The EU have said time and again that their position is not negotiable. Theresa May’s deal was rejected three times by parliament. The logical conclusion is leaving without a deal. Making ‘no deal’ illegal, is indirectly saying that we cannot leave the EU. Could this be challenged in the Supreme Court, parliament has indirectly and deliberately thwarted the will of the people as expressed in a referendum; but maybe they are okay because they have not done this by breaking the law, but by creating law. Indeed that’s what politicians do, they create laws to produce (or prevent desired outcomes). If Johnson could have produced a law allowing for the prorogation of parliament for one specific week he may have been okay. Johnson provided the Supreme Court with a simple procedural technical question, nice and easy for lawyer, quash. Lawyers and politicians use obscuration and intrigue to achieve what they want, this is what the Remainers have been doing, perhaps ironically Johnson was too honest and to transparent, critics might say naïve, arrogant and/or lazy. Nonetheless more honesty and transparency is to be welcomed from our judges and politicians, and there is a danger that we may discourage this further.

A Game

7th October 2019 at 12:18 am

If Brexit does get delivered, the Remain reaction will test your ideas no end. I think they will start hurling everything at the courts. Legal pot luck. Something has to stick, eventually, right?

Geoff Cox

4th October 2019 at 9:08 am

Another point to be made is this. How would the judgement have gone had Boris had a comfortable majority in the Commons? I think very differently because had the Supreme Court chosen to rule the prorogation unlawful, the Government could have / would have simply passed a bit of legislation deeming it to be lawful. I believe this would have put them off being so bold.

Sadly the Supreme Court have taken the opportunity to grab some power while they could, and to make it more delicious for them (as they see it), they can virtue signal and support Remain at the same time. Never mind the plebs – they never speak to them anyway.

Jim Lawrie

4th October 2019 at 8:45 pm

That is a very good point Geoff. Duly noted.

Philip Humphrey

4th October 2019 at 7:36 am

Quis custodiet Ipsos custodes? (Who guards the guards?) This to me is the central problem. Exactly to whom are the supreme court answerable should they abuse their powers. And no satisfactory answer seems to be forthcoming, other than other judges. I think a change is needed. Judges were originally kings and unaccountable. But in most societies judges are paid to sort out people’s disputes so the people don’t have to resort to revenge, vendettas and violence. And that’s where I think we need to get back to – judges should be paid servants of the British people, answerable to the British people if they don’t do a good job. If judges wish to meddle in politics, they should have to face election, or face some other sanction from the British people. Same as any employee faces sanction by their employer if they don’t fulfil the contract.

Geoff Cox

4th October 2019 at 8:49 am

Yes, Philip precisely. Judges are there to sort out disputes between citizens, not between government and citizens. We have elections for that.

One other question – who controls the police force? The Home Office? Or will the Supreme Court take charge over them. I’ve been thinking about the Benn Act. Suppose Boris defies and breaks that law. Say he is taken to court and found guilty and an arrest warrant is ordered. What if the Home Sec then says – “nah don’t think so, the Benn act is unconstitutional”. Or, it doesn’t have to be Boris, it could be any judgement where the Supreme Court disagrees with the Government. What sanctions do the Supreme Court have because if they think they can carry on this way, they will have to acquire some teeth. These are very worrying developments and I believe there will have to be a fight back by Parliament as opposed to just the Government.

Robert Davies

4th October 2019 at 9:35 pm

They are indeed worrying developments. The government must get back a majority to then pass through some new legislation that curbs the power of the judiciary over Parliament, puts them back in their box so as to speak, and, crucially, introduce a refreshed, written version of our Constitution that , like the American one, is known to all.

Andrew Best

4th October 2019 at 7:14 am

Just another layer of remainers between us and our freedom
The godhood of Hale proves it
Why do they hold the eu in such high regard and respect but hate their own people?

Philip Humphrey

4th October 2019 at 7:38 am

Because they have the same unaccountable power and privileges as the unelected bureaucrats of the EU and there’s a common cause (and mutual support).

A Game

7th October 2019 at 12:13 am

Its a good question. Why do they hate democracy, what vision of society do they think they have that is better than what democracy (in its admittedly, slow, tedious way) can deliver, why do they think that to just work in the law creates something special about them, that they are in a position to replace the monarch, the autocrat, the oligarchs etc. Society on the whole gave this crowd the elbow. But wilfully, no, no, these people have chosen to bestow that power on themselves.
Is it literally that they are just as petty as people as everyone else? All the power games every workplace is riddled with, every sport, hobby… that probably is the answer… and its so depressingly boring.

Ron Bell

4th October 2019 at 4:59 am

If the judiciary continue to interject their opinions into the political sphere, then there must be direct accountability to the people. One without the other is tyranny.

Michael Lynch

4th October 2019 at 11:29 am

Spot on.

Aunty Podes

5th October 2019 at 1:53 am

Too right (actually not enough Right!)
The tyranny of the left – latter day communism.

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