Richard Ekins is a Fellow of St John’s College and an Associate Professor in the University of Oxford. He leads Policy Exchange’s Judicial Power Project. Graham Gee is Professor of Public Law at the University of Sheffield and editor of the Judicial Power Project website.
The High Court’s recent judgment in Miller attracted considerable public attention, much of it critical. This is hardly surprising. The judgment’s political implications are far-reaching and there are powerful criticisms to be made of some of the legal reasoning on which it rests. But it is wrong to assert that the judges wilfully set out to block Brexit, and some of the newspaper coverage of the judgment was unhelpful and unpleasant. The judgment was a mistake, not a conspiracy – a mistake that the Supreme Court may yet set right when it considers the Government’s appeal against the judgement early next month.
The ferocity of some of the criticism of the High Court provoked a strong reaction in turn. This counter-reaction itself risks excess, with rash tabloid headlines being equated with fascism. Judicial independence in Britain has strong foundations, and can withstand the bouts of ill-advised and unfair public criticism that are part and parcel of living in a vibrant democracy with a strong commitment to the rule of law. It would be a different matter if the Government was targeting judges in some way, but expressing concern about the judgment, or the litigation as a whole, is not at all of this character, especially in view of its constitutional and political significance.
Debate about the Miller judgment occurs against the backdrop of wider concerns about the changing role of judges in public life. The High Court’s judgment is in one sense an unlikely focus for these concerns – it is not novel for judges to be asked to determine the legal limits of executive power, and as we say the judgment seems to us to be a mistake rather than an overreach (there are many more problematic decisions). Still, it is undeniable that judicial power has long been on the rise and this wider constitutional context is relevant to how one evaluates the litigation.
The changing judicial role
The incorporation of EU law and the ECHR into our law has changed how domestic judges have had to act, and the way that many of them have understood the judicial role. The Court of Justice of the European Union and the European Court of Human Rights provide very different models of judicial action, proving much more willing than British courts have traditionally been to oversee the political authorities and to depart freely from legal materials. More generally, many in the legal elite have lost confidence in Parliament and the political process, concluding that human rights are better protected by way of litigation than legislation. For this reason, many lawyers and judges now assume that membership of the EU or ECHR is essential if justice and the rule of law are to be secured. On this view, parliamentary sovereignty is to be acknowledged in theory, and perhaps even deployed strategically in litigation, but to be treated as dangerous in practice.
The expansion of judicial power is not confined to human rights law. Still, the Human Rights Act 1998 has sharply changed judicial practice, requiring many political questions to be treated as legal questions. The HRA has forced judges often to break new ground, has made their political preferences ever more important, and has invited them to distort ordinary legal technique. Some judges have embraced the opportunities this new dispensation offers, and have even begun to go beyond the requirements of Strasbourg case law, as the Supreme Court’s majority decision on assisted suicide in Nicklinson illustrates. The HRA enables judges to exercise de facto powers of law reform, which in turn undermine the rule of law, the separation of powers and self-government. Its wider significance has been the change it has worked in judicial culture, a change that has accelerated an existing trend towards judicial overreach in domestic law.
The grounds and scope of domestic judicial review of executive action have long been growing. In the last two decades, the intensity of judicial review has increased, with domestic courts today exhibiting much less deference to or respect for political judgments or processes, and legislative judgments and processes in particular, than did their predecessors. Recent years have witnessed constant judicial challenges to migration law and border control as well as to ministerial judgments about the public interest in complex areas such as whether to hold public inquiries. The realm of high policy that was traditionally outside the reach of judicial review has shrunk, as the judicial entanglement in questions of foreign affairs and military action confirms.
Recent years have seen the adoption of dubious new interpretive practices, in which interpretations of statutory provisions have become unmoored from legislative intent. The much-criticised decision in Evans v Attorney General (the Prince Charles ‘black spider memos’ case) is the best recent example. In this case, three Supreme Court judges effectively read the ministerial veto out of the Freedom of Information Act 2000. And other judges have gone even further, entertaining direct challenge to the doctrine of parliamentary sovereignty itself. In obiter dicta in the Jackson case, several senior judges turned settled constitutional orthodoxy on its head by asserting that the principle of the rule of law entitled the courts to invalidate Acts of Parliament. In truth, this would be to sacrifice the rule of law for the rule of courts.
Politics by other means
All this underscores the very real sense in which judicial proceedings sometimes resemble politics by other means. On contentious questions of public policy, litigation may risk being ‘a second bite at the cherry’ for well-connected elites or interest groups who have lost in the political arena. That is, litigation may provide a ready means to raise spurious obstacles to the lawful attempts of political authorities to deliver on commitments to the common good. In high-stakes cases, lawyers can employ strained legal arguments, which should be rejected but which flatter the constitutional importance of the judge and overstate the institutional capacities of courts to secure justice. The adoption of such legal arguments may wrongly reverse, frustrate or delay policy outcomes debated and decided in open, inclusive and representative political spheres.
This is not a good way to conduct democratic politics and it is injurious to the rule of law. Many judges know, recognise and lament this, but it is not entirely open to them to reverse it. What judges can do is resist the extension of this trend in the individual cases that come before them. What Parliament should do is legislate to help restore the traditional judicial role.
Viewed against this background, the Miller litigation takes on a different cast. After all, there are reasons to speculate that the point of the litigation – not the reason for the High Court’s judgment – has been to impede or at least delay Brexit. Recall the letter by a thousand barristers written in July this year, asserting that the Government had no authority to trigger Art 50, that the referendum was merely advisory and that Parliament should think long and hard before giving effect to it. Note also the delight expressed by some public figures, and arguably the markets, at the prospect that the judgment raises the chances of Brexit simply being called off. In this context, it is hardly surprising that some non-lawyers have reacted angrily (if, in some instances, ill-advisedly) to the judgment.
The litigation has been presented by the claimants and others – including some who are sympathetic to Brexit – as a principled challenge to executive power and a vindication of parliamentary sovereignty. But this is wholly artificial. First, using the prerogative to trigger Art 50 in no way undercuts or displaces any Act of Parliament, as John Finnis has made clear in a powerful argument which should be put before the Supreme Court on appeal. Second, there has never been any prospect of executive tyranny here. The Government proposes to exercise its prerogative powers to trigger Art 50 only because of the outcome of a referendum held by virtue of an Act of Parliament. And the Government remains accountable to Parliament for its exercise of the prerogative. If the object had been to ensure parliamentary control one would have lobbied for a resolution in the Commons not brought proceedings in the High Court.
As we say, Miller is in many ways an inappropriate object for public ire about the misuse of judicial power. But the willingness of disappointed parties in a national referendum to bring legal proceedings to undo their defeat forms part of a wider, deeply problematic trend which ought to be reversed. This is not a reason for the Supreme Court to overturn the first instance judgment, but in vindicating the settled legal position the Court will contribute to this end.