At the height of the Brexit drama, the judiciary was thrust into a storm of publicity. From senior judges described by the Daily Mail as “Enemies of the People,” to the supposed “messaging” sent by Brenda Hale’s spider brooch, there was a significant focus on the role of the judges and a suggestion that some might be seeking to thwart Brexit with their rulings.
While Brexit might have been the catalyst for some of the more lurid headlines, a simmering conflict between some politicians and the judiciary had been brewing for many years. It resulted in the think tank, Policy Exchange, establishing what it described as a Judicial Power Project and more recently the government commissioning an Independent Review of Administrative Law.
The crux of the argument that was made against the judiciary was that judges were over-reaching and failing to respect the legislature’s final authority, or the executive’s exercise of its powers. Concerns were raised about the judiciary’s use of the Human Rights Act, judges’ approach to “ouster clauses’ (legislative provisions which seek to preclude the courts from examining a case) and their judgments on the executive’s use of prerogative powers (most notably in the two well-known Gina Miller cases).
Yet, quietly, and in a very much unheralded way, we have seen something of a changing of the guard, which might be having a significant impact on the work of the top court and relations between judges and politicians. Of the 12 Supreme Court justices in place when the second Miller case was decided (11 of whom participated), five have since retired (Hale, Wilson, Carnwath, Black, and Kerr, who sadly died shortly afterwards). Perhaps only Hale was a household name. But with the departure of some well-established figures, we have begun to hear questions about whether the judges might be “cowed” by an openly reformist government with a significant majority.
These concerns were exacerbated when the Johnson government threatened to ignore the considered findings of its own Independent Review and introduce significant restrictions on the courts’ powers of judicial review. While the eventual Judicial Review and Courts Bill, introduced in July, was described as a damp squib, the inherent threat of this new legislation has framed recent debates.
However, possibly the strongest reason to believe that the Supreme Court might adopt a different approach is contained in its own recent judgments. The most prominent was in a case on the child benefit cap—a policy that placed a two-child limit on access to certain welfare payments. The claimants, supported by an NGO—the Child Poverty Action Group—contended that the policy was incompatible with human rights law and discriminatory. The failure of the challenge was less striking than the language contained in a unanimous ruling of the court, in which the President, Robert Reed, gave the sole judgment.
Amongst other things, he appeared critical of discrimination challenges brought by: “campaigning organisations which lobbied unsuccessfully against the measure when it was being considered in Parliament, and then act as solicitors for persons affected by the legislation, or otherwise support legal challenges brought in their names, as a means of continuing their campaign.”
He noted that the powers conferred on the Supreme Court when considering whether a measure was proportionate were “very broad” and lamented the “risk of undue interference by the courts in the sphere of political choices.” The courts should apply the principle of proportionality, he said,“in a manner which respects the boundaries between legality and the political process.”
While it is far too early to draw conclusions from a single judgment, some commentators have contended that there may be a trend, noting that Reed’s presidency has also seen the Supreme Court “permit the Home Secretary to unilaterally strip British citizens of their nationality without due process.”
Unsurprisingly, the court’s change in tone has been welcomed by the government. In a keynote speech announcing the new judicial review reforms, the Lord Chancellor, Robert Buckland, said he was “encouraged by recent decisions of the Supreme Court” and implied that the courts themselves were taking action to address “any potential problems of judicial overreach.”
All of this leads to profound questions about the interplay between different branches of the state and the effects of government rhetoric on the decisions of the UK’s highest court. And bound up in all that are perennial questions about personality—does it matter who our senior judges are and does who we appoint have a significant impact on decision-making?
Reed served as a senior judge in Scotland for many years prior to his appointment to the Supreme Court, including as principal commercial judge at the Outer House of the Court of Session. He was promoted to the Inner House—the top civil court in Scotland—in 2008. Unlike some of the larger judicial personalities, such as Brenda Hale and Jonathan Sumption, he has not taken to giving frequent speeches on contentious issues. His views and background are, perhaps, less well known than those of some of his former colleagues.
In a 2019 lecture entitled “The Supreme Court Ten Years On” Reed reflected on the fact that judges were increasingly being asked to deal with cases involving “issues on which public opinion is sharply divided.” He seemed particularly concerned that there was a danger that “people who do not understand what judges do may assume that they simply apply their own political or moral views.” In a subsequent appearance before the Lords Constitution Committee in March 2020, Reed appeared to accept that there was an issue with what were essentially political cases being brought before the courts. However, he argued that judges were now “repelling them,” and that they were “careful to avoid straying into what are genuine political matters.” This approach seems to be reflected in his judgment on the child benefit cap case.
Other changes on the Supreme Court bench might also have an impact on decision-making. For example, following two recent public law judgments, legal blogger Gabriel Tan has suggested that the presence of Philip Sales, a former “Treasury Devil” (a leading Treasury counsel who represents the government in the civil courts), might lead to a renewed focus on political constitutionalism—a philosophy which suggests that the legislature, not the courts, should act as the main check upon executive power.
For some, simply posing questions about our senior judges prompts a knee-jerk response that we do not wish to see a move towards a politicised US-style appointments process. Yet, the judges themselves tell us that diversity and who we put on the bench makes a difference. Hale has noted that having more female judges might affect case outcomes and wrote an interesting foreword to a book on feminist judgments. Terence Etherton, the former Master of the Rolls, wrote a thought-provoking article on the philosophy of judging in which he considered whether a judge’s personal and moral philosophy can impact on judicial decision-making.
My own view on all of this is mixed. I think that there may be benefits in our senior judges ceasing to be seen as “personalities.” It struck me as unhealthy when commentators began believing that Hale and Sumption represented what appeared to be two competing (small p) political poles. Judges who are perceived to have stepped into the political arena when speaking, particularly extra-judicially, will find it harder to step behind “the shield of judicial independence” when politicians respond.
Nonetheless, there is a clear concern that the pendulum may swing too far the other way. While the judges should not over-extend themselves, neither should their decisions be subservient to the political choices of the executive.
