Is former Supreme Court president Nicholas Phillips optimistic about the rule of law?

The question of how the UK constitution should work has been given new urgency. The Gina Miller court cases brought the issue to wide public attention; the government’s handling of the pandemic has generated heated discussion around executive powers and their legitimate use.

It was against this backdrop that I called Nicholas Phillips to ask about the rule of law. One of the UK’s most significant legal figures, Phillips served as Master of the Rolls, the second highest-ranking judicial position in England and Wales, before his promotion to Lord Chief Justice—the top post in E&W. After a subsequent stint as the UK’s most senior law lord, he became the inaugural president of the UK Supreme Court on its creation in 2009, a position he held until 2012.

Now 82, Phillips is back in the Lords as a crossbencher. He is a careful talker and naturally thoughtful, as befits a former judge. Even so, he “had some concerns” about the UK’s position. What’s more, “there are aspects of the rule of law which go far beyond the current emergency,” he said.

The most significant constitutional reform in recent times was the creation of the Supreme Court, a consequence of 2005 legislation which “essentially intended to underline the independence of the judiciary from the legislature and the executive,” said Phillips. Previously the 12 law lords had sat in the Upper Chamber. Four years later they moved across Parliament Square and into Little George Street.

But it was arguably not until 2017, and the first Gina Miller case, that the Supreme Court acquired mass public recognition. That interest grew still further two years later, when the government suffered a humiliating defeat on the prorogation of parliament. Were Phillips’s successors right to rule in the way they did?

“Looking back with hindsight, I think the decision was clearly right,” said Phillips. It was remarkable that “no positive justification [for the prorogation] had been put forward” by the executive.

The first question was whether prorogation was a legitimate subject for the courts. But “If you said it’s not, what would the position have been if [hypothetically], some reporter had managed to prove that the prime minister had been bribed to prorogue?” If the courts do not have the right to police such limits, “who does?”

“One view might be ‘well, parliament itself ought to have a say in when it’s prorogued and for how long, but it didn’t in the situation.’”

This was not an orthodox judgment, but then “it wasn’t an orthodox question!” said Phillips. “The Supreme Court is having, from time to time, to deal with constitutional issues, as a constitutional court. They don’t happen very often… this was unprecedented, so you can’t really describe the result as being conventional.”

While Phillips is at peace with the judgment, in the weeks that followed there were howls of protest. Critics accused the justices of “judicial activism”—illegitimately expanding the reach of the courts into political matters. The government announced a new democracy commission, with one government insider briefing that its aim was to “get the judges sorted.” For Phillips, if that were accurate, it would “concern me a lot.”

The commission has been put on hold as the government deals with Covid-19. But it looms large on the horizon for anyone concerned to preserve what is best about our judiciary. There has been talk of introducing political, rather than merit-based, judicial appointments. When I asked Phillips if this was a very bad idea, he replied “You’re quite right... it would be unfortunate, I think, if judges were chosen because of their political views.” Ultimately, the legislature and the executive “together can clip the wings of the judges if they want to. But I think it would be undesirable if that should happen.”

Despite firm objections to some hypothetical proposals, Phillips “wouldn’t seek to prevent a commission that looks at our constitution. It seems to me a very good idea to look at it.” He added: “I would not be in favour of doing so with a presumption that you’re going to introduce a written constitution.”

Whether we need a written constitution is a subject to which Prospect has devoted many pages, coming out in favour of codification last year. “My own view is that we have so far proved to be quite well off without one and I’m not persuaded that we ought to have one,” said Phillips.

Indeed, “Saying ‘should we have a written constitution?’ leads to the questions: ‘what would it say? And would that be better than the current situation?’ There are areas of the constitution which might benefit from the intervention of parliament. A written constitution? I’m not sure. My own view is, at the moment, it hasn’t been shown that we’d be better off than we are now.”

He added: in codifying “what you’re doing is trying to identify problems that may arise of a constitutional nature in the future and to legislate to deal with them. With an unwritten constitution, you wait until a problem arises and then the courts grapple with it. And I think the latter can very often be more satisfactory than the former.”

What’s certain is that a codified constitution would be no way to disempower the courts; “you’re going to give more power to the judges, because you’ve got to have a constitutional court to interpret it, and to make sure that it’s observed,” he said.

The latest test for the government’s commitment to the law is the pandemic. Dominic Cummings was berated for violating lockdown, while Suella Braverman, the Attorney General, was accused of compromising the independence of her office when she leapt to his defence. Phillips would not comment on the former. Braverman “probably has been struggling with drawing the correct balance,” he said in general terms, declining to comment further on the specifics of the case.

On the whole, he continued, “the task facing the government has been, I think, really horrifying.” While it has taken “very draconian powers” and in controversial fashion, these have for the most part been necessary evils. “There are individual aspects of the regulations that one can criticise” (and some Prospect contributors have). “But it’s not so helpful to identify what went wrong, rather than identifying how to deal with the situation as it now appears.” Any rolling inquiry meanwhile would be “second guessing actions of government as they go along” and is not to be advised.

In summing up, Phillips was optimistic. “Our judiciary has a reputation for high calibre and integrity—the two go together,” he said. “I think this country has been considered at the forefront of upholding the rule of law,” he added. “I hope that we continue to be so.”

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On statue toppling:

“It certainly made me uneasy. There may be good reasons for removing statues—I think in some cases there are—to be put somewhere else, to demonstrate their artistic or historical significance rather than being put up in a public place on the basis of ‘everyone should admire them.’ But the way to deal with that is not by a minority of the population pulling them down and throwing them into the harbour.”

On his legal hero:

“I think the same as most lawyers of my generation would answer, and that’s Tom Bingham. But I have another legal hero which is Michael Mustill, who went to the House of Lords. He did happen to be my brother-in-law, but that’s not the reason why he is a legal hero of mine. I thought he was quite an outstanding judge. He specialised in commercial law and had a very big hand in the development of our Arbitration Act, and he gave some very good judgments in that field. But he also gave impressive judgments in the criminal field and was a very, very good criminal jurist. But what impressed me most was the depth of his thought, the degree to which he wrestled with problems and introduced rigour and intellect.”

On which judicial position he most enjoyed:

“I enjoyed almost all my career, I don’t think I can put one time over any other to a great degree. The bar, in my day certainly, was a wonderful career and tremendous fun. The job of being a judge carries responsibilities which you don’t have as a barrister. But I think leading the Supreme Court in the first years of its life was probably the most satisfying.”