This week’s decision by the Court of Session to rule Boris Johnson’s advice to Her Majesty to prorogue Parliament unlawful has once again put the spotlight on the relationship between politics and the judiciary.
Whether or not you think this is the judges’ fault appears to be one of the emerging dividing lines. To some, the Scottish court has overstepped its proper bounds to stray into territory which is properly the reserve of politics. Others insist that they were only applying the law appropriately.
As the Court of Session’s ruling conflicts markedly with a ruling from the High Court in London on the same question, all eyes are now on the Supreme Court, which will make the ultimate decision on Tuesday.
But the broader question of the relationship between the political and judicial elements of the constitution will remain regardless of their ruling – albeit that a Government defeat might make them more pressing.
Concern about the role of the judiciary predates Brexit. Perhaps the most high-profile group examining this question is the Judicial Power Project, run by Policy Exchange, which maintains a list of 50 ‘problematic cases‘ which it feels evidence a tendency towards judges using developments such as the Human Rights Act and European Union law to carve themselves a new and larger role in our settlement than has historically been the case.
But Brexit has given rise to at least two phenomena which exacerbate the problem. The first is the marked increase of ‘lawfare’ – the use of litigation to pursue political goals – by its opponents. The case before the Court of Session (not the judgment itself) is simply the latest example of this. We have previously chronicled others, including not only Gina Miller’s lawsuit over Article 50 but also the one-sided harrying of the Electoral Commission.
The second is the emergence, partly in response to the above, of what we might call the ‘Enemies of the People‘ school of journalism. This arises when the judges end up in the sights of the popular press – usually the Daily Mail, which distinguished itself this week by outing one of the Court of Session judges as harbouring a “passion for France” – and receive the treatment it usually dishes out to politicians, quangos et al.
We have also seen politicians, most recently Kwasi Kwarteng, demonstrate an increased willingness to take potshots at “biased judges”, and anonymous briefings attacking the Scottish judiciary.
Both Kwarteng and the Mail have come in for heavy criticism for their comments, and the Government at least has rowed back.
But as Enoch Powell once put it, “a politician complaining about the media is like a fisherman complaining about the sea.” Judges and jurists may not be politicians, but the same principle of futility may apply: complaining about the way the Mail covers stories has very rarely deterred it in the past. Why would it now?
If that somewhat fatalistic assessment is correct, there is therefore strong probability that if the judges do end up more prominently involved in political disputes the result could be an increasingly polarised and political attitude towards them amongst press and public – regardless of whether they or legal academia think this ought to happen or not.
I already set out elsewhere the danger this poses:
“The reason that the constitution is such a high-stakes issue – for all that it can seem dry and arcane – is because it is fundamentally about the rules by which the game is played. Once the impression sets in that the rules are being unevenly applied, or rewritten on the fly, it erodes trust in both rules and umpires alike.
“A system wherein one side believes that those responsible for enforcing the rules are ‘on their side’ and the other believes just as strongly that they’re not is on a fast track to institutional breakdown – as the House of Commons under John Bercow could be argued to illustrate.”
I might have added that it is probably not necessary for either side to actually be right in their perception for such damage to be done. This will frustrate those who prefer to design the constitution independently of the attitudes of those operating within it (“The Fixed-term Parliaments Act is fine, it’s just that nobody understands it.”), but nonetheless if, for example, half the House of Commons thinks the Speaker is biased against it then that institution is in trouble, regardless of whether the Speaker is actually biased or not.
Where all this ends up is unclear. We might end up leaning into the judges’ evolving role and adding an element of public and political scrutiny to the appointments process, à la the United States – an idea floated by Lady Hale, the current President of the Supreme Court. Or we might see a future Government take action to tackle some of the mechanisms driving this evolution and guide the courts back towards their traditional posture, which seems to be the preferred course of the JPP.
Either way, it would be best if this question were resolved outside of a fraught constitutional dispute such as Brexit. We can only hope that circumstances permit it.