Lord Reed is right to argue that the role of the judiciary needs to be explained and defended more carefully than ever thanks to the challenges wrought by the rise of populism. And if experience elsewhere, and the direction of political travel in the UK is any guide, such considerations will only become more important in the coming years.
In a recent lecture delivered at the Inner Temple in memory of former Lord Chief Justice Lord Taylor of Gosforth, the President of the UK Supreme Court, Lord Reed of Allermuir, offered a series of thoughtful reflections on the role of the judiciary in an age of populism. Joshua Rozenberg has published a very helpful and thorough summary of the lecture, which I recommend and will not attempt to replicate here. Rather, I draw attention to four aspects of Lord Reed’s lecture that are of particular interest from a constitutional perspective.
The need for public and political education about the legal system
First, a central theme of the lecture concerns how the judiciary is perceived at a time when trust in public institutions is falling in the UK and elsewhere and when misinformation is pervasive. Against that background, Lord Reed persuasively argues that courts like the UK Supreme Court need to do more than they have traditionally done to ensure that their judgments, and their role more generally, are well understood — by the general public, by the media and by politicians. Lord Reed’s comments on the relationship between judges and politicians, and his account of the steps that the Supreme Court takes to attempt to make that relationship a constructive one, are particularly interesting in constitutional terms. Especially striking are some of the misconceptions that Lord Reed highlights on the part of politicians with whom he has engaged. For example:
[A] question I have been asked by a parliamentarian revealed an assumption that the law consists only of legislation. Judicial development of the common law was assumed to be constitutionally illegitimate activism. Again, lawyers take the judicial development of the common law for granted, but why should we expect lay people to know anything about it unless we explain it to them?
Lord Reed is, of course, right that there is an understandable risk that lay people might think judicial development of the common law involves improper activism, a point that underlines the importance of public legal education. But it is perhaps unduly generous to elide the general public and parliamentarians in this context. Lord Reed does not say whether ignorance of the judiciary’s role in developing the common law is confined to a single parliamentarian or is part of a broader misconception. But if even one MP or peer fails to grasp this basic point about the judicial role in a legal system that is founded on the common law, that is surely a cause for concern. If nothing else, it makes a strong case for reviewing and strengthening the education and support offered to new MPs and peers, in the interests of ensuring that they understand not only their own constitutional role as law-makers but how that role fits into the wider legal and constitutional landscape.
Political scepticism about the courts’ constitutional role
Second, Lord Reed explains that politicians ‘often’ misunderstand the role of judicial review and the powers of the UK Supreme Court:
At my meetings with politicians I am often asked the same questions. I am asked about the legitimacy of unelected judges overturning the decisions of a democratically elected government, which gives me an opportunity to explain the difference between the government and Parliament, and the duty of the courts to uphold the laws enacted by Parliament if they are violated by the government. I am asked whether a Supreme Court operating on the American model is not foreign to our constitutional traditions, which gives me an opportunity to explain the differences between the UK and US Supreme Courts, and how the UK court is simply the Appellate Committee of the House of Lords in a new form, separated from Parliament but performing the same judicial function in the same way. It is much better to have the opportunity to engage with politicians who hold these concerns and explain the position to them than have them continue to hold mistaken beliefs about the judiciary.
The point made above might be repeated here. It is both surprising and concerning that parliamentarians should fail to understand the fundamental differences between the nature and role of the UK and US Supreme Courts — including that the former, in contrast to the latter, has no authority to strike down primary legislation — or that judicial review of government decisions is a way of upholding, not undermining, parliamentary sovereignty, by ensuring that the executive operates in alignment with the legal framework set out by Parliament.
It is, however, unclear to what extent the problem here is one of understanding as distinct from being a function of ideology, given growing evidence of political discourse that questions the legitimacy of judicial control of government. Such discourse is particularly pronounced at present in the United States. When US Chief Justice John Roberts innocuously said that the courts’ job is to ‘check the excesses’ of the executive, Vice-President JD Vance described that view as ‘profoundly wrong’, arguing that it is inappropriate for judges to prevent elected politicians from enacting their mandate.
On this side of the Atlantic, Leader of the Opposition Kemi Badenoch has argued that ‘lawfare’, in which she includes the use of judicial review to ‘attack democratic decisions and common sense’, is a pressing problem that needs to be tackled, while others on the right go much further — including as far as arguing for the creation of ministerial powers to dismiss ‘activist’ judges. While many of these arguments are couched in terms of upholding parliamentary sovereignty in the face of an activist judiciary, such framing is often a thinly veiled attempt to advance an argument that ultimately reduces to one that favours executive supremacy. All of this suggests that the sort of engagement Lord Reed advocates (and which the Supreme Court and others undertake) is imperative: not just in order to facilitate an accurate understanding of what the courts do but to ensure that there is an equally clear understanding of why it is appropriate for the judiciary to review administrative action.
Constitutional dynamics
Third, Lord Reed draws attention to an important matter relating to the dynamics of the institutional relationships that are central to the effective working of the UK’s uncodified constitutional order. In this regard, he begins by noting the deep concerns that are entertained by some politicians about the role of the courts, particularly in relation to judicial review:
my meetings with parliamentarians have also made clear to me the depth of the misgivings which are felt about the judiciary. For example, there is a widespread concern about what they believe to be the over-readiness of judges to allow applications for judicial review. There is also a concern that if Parliament tries to protect the decisions of those bodies from judicial review by means of ouster clauses, the courts simply ignore them. The solution, in the view of some parliamentarians, is to frame provisions conferring discretionary powers in language which is as wide as possible, so as to stymie judicial review.
The extent to which it is constitutionally appropriate for Parliament to legislate to limit judicial review in the event that politicians are uncomfortable with how judicial review operates to constrain executive freedom is the subject of considerable disagreement. Some argue that in a constitution characterised by parliamentary sovereignty, it is entirely appropriate for Parliament to legislate in such a way. (The shadow Attorney General, Lord Wolfson, made a point along these lines in a recent lecture.) Others contend that even if it is lawful for Parliament to limit judicial review, it must, at least to some extent, resist the temptation to do so in order to ensure that the courts retain their capacity to uphold the rule of law. Meanwhile, some go even further, arguing that, ultimately, the constitution denies Parliament the authority to remove judicial review.
Ambiguity concerning these fundamental constitutional questions has the capacity to sustain a form of creative tension, whereby neither the courts nor the political branches press their powers too far, for fear of the uncertain consequences that might ensue if they did. Through such an uneasy truce a form of constitutional balance can be maintained. Importantly, however, Lord Reed indicates that a different dynamic — one involving destructive combativeness rather than rather than a virtuous cycle of mutual respect and restraint — might also develop, and cautions the judges themselves to be careful about how far they go in their pronouncements:
It is worrying that there should be distrust of the courts, and it underlines the need for the courts to do what they can to build greater trust. But we should not deceive ourselves into thinking that the reasons for the distrust have nothing to do with the courts. Cases in which, for example, judges have said that they might disapply an Act of Parliament which they regarded as contrary to the rule of law, or in which they have interpreted ouster clauses so narrowly as to render them ineffective, have left a legacy. The courts’ approach in recent years has been more attentive to the separation of powers; but the more ambitious decisions and dicta of the past have not been forgotten.
Lord Reed presumably has in mind cases like R (Jackson) v Attorney General [2005] UKHL 56, in which Lord Steyn said that if Parliament ever attempted to eradicate judicial review, the courts would have to consider whether it is a ‘constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish’. By drawing attention to such dicta, Lord Reed rightly acknowledges that judges should not be surprised if rhetoric like Lord Steyn’s stokes political concerns about judicial activism. Recognising that risk is important; but it does not necessary mean that Lord Steyn’s sentiment was wrong, or even that it is inevitably inappropriate for judges to raise such questions. If the Supreme Court were ever to be faced with a Judicial Review Abolition Act or something that coming to it, it would surely at least have to ask itself the question whether the constitution really permits such legislation. Indeed, it would have to ask itself whether giving effect to such legislation would fulfil or undermine parliamentary sovereignty itself, given that — as the late Laws LJ pointed out — Parliament can arguably be sovereign in the sense of having the capacity to make laws properly so called only if there is an independent judiciary capable of interpreting and curating such laws, including those that define and limit the government’s powers and which are upheld by way of judicial review.
Crying ‘wolf’
Fourthly, and finally, Lord Reed says:
If it is desirable for politicians to understand the judiciary better, it is also desirable for the judiciary to understand politicians better. It is important that a sense of proportion is maintained and that we do not cry “wolf” in response to every proposed statutory intervention in the work of the courts. It needs to be recognised that not all proposals for the modification of judicial review, or sentencing policy, or the protection of human rights, are constitutionally improper. The current state of judicial review, or sentencing policy, or human rights protection, is not sacrosanct. Not all proposals for reform are equal and not all criticism of the status quo, or of the courts, implies a lack of commitment to constitutional principle. Responding as if it does limits the scope for mature discussion and risks stoking the type of populist reaction that it is in all our interests to avoid. Those who wish, as I do, to defend the crucial role played by the judiciary in our Parliamentary democracy need to exercise judgement and encourage a measured debate, rather than responding in a way which encourages the view that the judges are a law unto themselves, deaf to criticism and an obstacle to reform.
This is an important point, which is as applicable to commentators as it is to judges. If the kneejerk reaction to any proposal that legislation would reform or limit the courts’ role is that such statutory intervention is constitutionally improper, the risk arises that any sense of proportion is lost. Indeed, the importance of not unthinkingly crying ‘wolf’ is a point to which I drew attention in a piece I posed a few months ago. It is necessary, therefore, to recognise that there is a distinction between reforms that might be thought unwise or undesirable and those that are genuinely constitutionally objectionable. For example, recent legislation that prevents judicial review of a very limited category of decisions made by the Upper Tribunal is very different, constitutionally speaking, from the sort of legislation that Lord Steyn was concerned about in Jackson. Similarly, it is, or should be, possible to think that it would be undesirable to repeal or radically amend the Human Rights Act 1998 while acknowledging that there is a variety of ways in which human rights can be protected, and that existing arrangements are not sacrosanct such that any departure from them would imply constitutional impropriety.
One of the challenges that arises under a constitution like the UK’s is that the line between those things that are (on the one hand) unpalatable or unwise and those that are (on the other hand) constitutionally improper is a highly indistinct one. That is precisely why Lord Reed is right to call for debate about constitutional matters to be conducted in a way that is measured and suitably attentive to the subtleties that are often in play. Yet if the direction of political travel in the UK and events in some comparator jurisdictions are any guide, we are entering an era in which subtlety risks being overwhelmed by a newly strident form of political and constitutional discourse. That does not undermine the value of what Lord Reed has to say on this issue. But it does suggest that as well as knowing when to exercise restraint or to demonstrate suitable subtlety in their arguments, those — like Lord Reed — who wish to ‘defend the crucial role played by the judiciary in our Parliamentary democracy’ will need to be willing to speak out boldly and clearly when the need arises. That need is likely to arise with increasing frequency in the coming years, in the face of the misinformation and polarisation of political discourse that are inevitable in an era characterised by populism.
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