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Published online by Cambridge University Press: 16 October 2017
The role of courts as lawmakers has been scrutinised, partly because of the questions it raises regarding legitimacy. This scrutiny has sometimes assumed that courts are safe from legitimacy-based criticism in their role as appliers of law. However, recent events in the United Kingdom show that, regrettably, this is not so: the media reaction to the judgments in the Brexit case of Miller went far beyond criticism of the courts’ reasoning or conclusions. It was an attack on legitimacy. Insofar as such attacks arise out of misunderstandings about the nature of adjudication (including, for example, the existence and scope of judicial discretion), one way of countering them is for the legal community (scholars, judges, practitioners) to continue to increase public awareness about these issues. However, it is incumbent upon other parts of the state – the executive and the legislature – to respond promptly to such attacks in order to uphold the independence of the judiciary and the rule of law.
1 Gavison, Ruth, ‘The Role of Courts in Rifted Democracies’ (1999) 33 Israel Law Review 216 CrossRefGoogle Scholar.
2 ibid 246.
3 ibid 256.
4 ibid 216.
5 ibid 218.
6 Although our choice of jurisdictions is different, my analysis, like Gavison's, focuses on the role of domestic courts. Another way of approaching the themes underlying Gavison's analysis and, in particular, the issue of how courts may secure their legitimacy, would be to consider the role of supranational courts. For example, the Grand Chamber of the European Court of Human Rights (ECtHR) has issued a number of significant and far-reaching judgments, which include ECtHR, Al-Skeini and Others v United Kingdom, App no 55721/07, 7 July 2011 (scope and application of art 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ((entered into force 3 September 1953) 213 UNTS 221) (ECHR) to the UK's extraterritorial military intervention in Iraq) and ECtHR, Hassan v United Kingdom, App no 29750/09, 16 September 2014 (interaction between art 5 ECHR and international humanitarian law in an international armed conflict). These judgments illustrate the breadth of the role of ‘appliers of law’ in a human rights context and give rise to questions regarding the proper role and competence of the ECtHR.
7 Gavison (n 1) 218.
8 ibid 229. The lawmaking aspect of the judicial role has been recognised by a number of senior English judges, writing extracurially. See, for example, (1) Reid, Lord, ‘The Judge as Law Maker’ (1972) 12 Journal of the Society of Public Teachers of Law (New Series) 22, 22Google Scholar: ‘There was a time when it was thought almost indecent to suggest that judges make law – they only declare it. Those with a taste for fairy tales seem to have thought that in some Aladdin's cave there is hidden the Common Law in all its splendour and that on a judge's appointment there descends on him knowledge of the magic words Open Sesame. Bad decisions are given when the judge has muddled the pass word and the wrong door opens. But we do not believe in fairy tales any more. So we must accept the fact that for better or worse judges do make law’; (2) Bingham, Lord, The Rule of Law (Penguin Books 2010) 45 Google Scholar: ‘The judges do have a role in developing the law, and the common law has grown up as a result of their doing just this. But, and this is the all-important condition, there are limits’; and (3) Lord Neuberger, ‘“Judge Not, that Ye Be Not Judged”: Judging Judicial Decision-Making’, FA Mann Lecture 2015, 29 January 2015, para 42, https://www.supremecourt.uk/docs/speech-150129.pdf: ‘A Judge is often called upon to make new law, whether by developing existing principles to address novel situations or lacunae, by interpreting and reinterpreting legislation and statutory instruments, or, more controversially, by revisiting established principles in light of social change’.
9 Gavison (n 1) 235.
10 ibid.
11 R (on the application of Miller and Another) v Secretary of State for Exiting the European Union [2017] UKSC 5; [2017] 2 WLR 583.
12 Gavison (n 1) 218.
13 Lord Neuberger summarised the effects of the Human Rights Act 1998 (UK) in his FA Mann Lecture (n 8) para 47: ‘The revolutionary effect of the 1998 Act is, in summary terms, threefold. First, Judges are now called upon more frequently to rule on moral and political issues, given that is what human rights involve. This means that we have to engage on a review of the merits of any decision or action which impinges on an individual's fundamental rights. Before the 1998 Act, our role in relation to government acts was more circumscribed. Secondly, Judges must perform a quasi-statute-writing function as section 3 of the 1998 Act requires Judges to read and give effect to legislation “[s]o far as it is possible to do so … in a way which is compatible with the Convention rights”. If legislation does not appear to comply, we must, if we can, recast it so that it does comply. Thirdly, under section 4 of that Act, Judges must tell Parliament when legislation cannot be made to comply and, with one exception (prisoners’ votes), it has done so’.
14 Gavison (n 1) 256.
15 See, Lord Neuberger (n 8) paras 20–21, in which he observed: ‘Judges are generally ready to explain what they do and why they do it, and quite rightly so. That is due to a number of factors. I would suggest they include (i) the modern awareness of the need for open justice, (ii) the increased role of the judiciary in determining questions of public policy, (iii) the growth in public communication generally, and (iv) changes in social and political discourse. … The increase in judicial openness is right and proper, but it leads to a concomitant increase in the risk of inappropriate attacks on Judges. Public criticisms of Judges and judicial decisions are an inevitable consequence of open justice, and they are an essential ingredient of an open society and free speech’.
16 See Lord Bingham (n 8) 51–54, which includes examples of judicial exercises of discretion; and ‘The job of the judge is to apply the law, not to indulge their personal preferences. There are areas in which they are required to exercise a discretion, but such discretions are much more closely constrained than is always acknowledged’; and ‘The rule of law does not require that official or judicial decision-makers should be deprived of all discretion, but it does require that no discretion should be unconstrained so as to be potentially arbitrary. No discretion may be legally unfettered’ (54).
17 Another recent illustration of the extent to which a prima facie question of interpretation can involve judicial discretion is Serdar Mohammed v Ministry of Defence [2017] UKSC 2; [2017] 2 WLR 327, an action for damages against the UK government alleging unlawful detention contrary to art 5 ECHR. One of the key issues for the Supreme Court was whether there was a power to detain in the relevant UN Security Council Resolutions (UNSCR) that applied in Iraq and Afghanistan. The majority held that there was such a power. Unlike Lord Reed's dissenting judgment, the majority judgments did not dwell on the Strasbourg case law on the construction of UNSCR (eg ECtHR, Al-Jedda v United Kingdom, App no 27021/08, 7 July 2011; ECtHR, Nada v Switzerland, App no 10593/08, 12 September 2012; ECtHR, Al-Dulimi and Motana Management v Switzerland, App no 5809/08, 21 June 2016) and the resulting proposition that UNSCR must contain clear and specific language if the Security Council intends that states take measures that conflict with their obligations under international human rights law. Instead, the majority, exercising their interpretative discretion, reasoned that the UNSCR had to have a uniform, global meaning because of the international nature of the peacekeeping operations. They said that the UNSCR could not, therefore, be construed by reference to a national or regional code of human rights protection such as the ECHR and pointed out that art 5 ECHR is unique in containing an exhaustive list of permitted grounds of detention, cf art 9 of the International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171. They also relied on the fact that there is nothing in general international human rights law that precludes detention where necessary on imperative grounds of security.
18 The two key provisions requiring interpretation were ss 2(1) and 1(2). s 2(1) provides: ‘All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly’. s 1(2) defines the expression ‘the Treaties’ as including the pre-accession treaties (described in Pt 1 of Sch 1 ECA), other treaties listed in s 1(2) and ‘any other treaty entered into by the EU … with or without any of the member states, or entered into, as a treaty ancillary to any of the Treaties, by the United Kingdom’. The Courts also considered art 50 of the EU Treaty which provides: ‘1. Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements. 2. A member state which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that state, setting out the arrangements for its withdrawal … 3. The Treaties shall cease to apply to the state in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the member state concerned, unanimously decides to extend this period’.
19 The dissenting judges referred to this: see eg Miller (n 11) Lord Carnwath [249]: ‘No less fundamental to our constitution is the principle of Parliamentary accountability. The Executive is accountable to Parliament for its exercise of the prerogative, including its actions in international law’.
20 The Secretary of State submitted: ‘[T]he fact that significant legal changes will follow from withdrawing from the EU Treaties does not prevent the giving of Notice, because the prerogative power to withdraw from treaties was not excluded by the terms of the 1972 Act … More particularly, [the Secretary of State] contended that the 1972 Act gave effect to EU law only insofar as the EU Treaties required it, and that that effect was therefore contingent upon the United Kingdom remaining a party to those treaties. Accordingly, he said, the 1972 Act Parliament had effectively stipulated that, or had sanctioned the result whereby EU law should cease to have domestic effect in the event that ministers decide to withdraw from the EU Treaties’: Miller (n 11) [37].
21 The claimants submitted: ‘[W]hen Notice is given, the United Kingdom will have embarked on an irreversible course that will lead to much of EU law ceasing to have effect in the United Kingdom, whether or not Parliament repeals the 1972 Act. … In particular … some of the legal rights which the applicants enjoy under EU law will come to an end. This … means that the giving of Notice would pre-empt the decision of Parliament on the Great Repeal Bill. It would be tantamount to altering the law by ministerial action, or executive decision, without prior legislation, and that would not be in accordance with our law’: ibid [36].
22 ibid [81] (emphasis added).
23 ibid [60].
24 Lord Reed, ibid [187], and see also [217].
25 Lord Reed, ibid [194].
26 Lord Reed, ibid [240]. See also Lord Carnwath, ibid [249] and [274].
27 Cardozo, Benjamin N, The Nature of the Judicial Process (Yale University Press 1921) 141 Google Scholar.
28 Lord Neuberger (n 8) para 21.
29 R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin), [5] (emphasis added).
30 ibid [92].
31 James Slack, ‘Enemies of the People’, MailOnline, 3 November 2016, http://www.dailymail.co.uk/news/article-3903436/Enemies-people-Fury-touch-judges-defied-17-4m-Brexit-voters-trigger-constitutional-crisis.html. See also Claire Phipps, ‘British Newspapers React to Judges’ Brexit Ruling: “Enemies of the People”’, The Guardian, 4 November 2016, https://www.theguardian.com/politics/2016/nov/04/enemies-of-the-people-british-newspapers-react-judges-brexit-ruling.
32 Macer Hall, ‘Brexit: EU Ruling on Article 50 is “an Affront to British People”’, Express, 3 November 2016, http://www.express.co.uk/news/politics/728591/Brexit-EU-ruling-Article-50-affront-British-people-High-Court.
33 Cited in Phipps (n 31).
34 ibid.
35 ibid.
36 Slack (n 31).
37 Executive Council of the Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA877 (CC), 1995 (10) BCLR 1289. The quote appears in Mark Kende, ‘President Nelson Mandela's Constitutional Law Legacy’, http://www.law.drake.edu/clinicsCenters/conLaw/docs/recentMaterials-mandelaLegacy.pdf.
38 Lord Neuberger (n 8) para 21: ‘the judiciary is the weakest branch of the state (having “no influence over either the sword or the purse… [and] neither FORCE nor WILL, but merely judgment”, as Alexander Hamilton put it [in Federalist Paper No 78, 28 May 1788]) and Judges cannot and should not be expected to defend their judgments, once they are delivered. Accordingly, attacks by ministers and MPs on the judiciary generally and on individual Judges in particular, are constitutionally inappropriate’.
39 Donald Trump, 4 February 2017, https://twitter.com/realDonaldTrump/status/827867311054974976.
40 Alan Yuhas, ‘Furious Trump Says Judge Who Defied Him Has Put US “In Peril”’, The Guardian, 6 February 2017, https://www.theguardian.com/us-news/2017/feb/05/trump-travel-ban-suspension-appeal-mike-pence-bernie-sanders.
41 See the Constitutional Reform Act 2005 (UK), s 1 (‘This Act does not adversely affect (a) the existing constitutional principle of the rule of law, or (b) the Lord Chancellor's existing constitutional role in relation to that principle’); s 3(1) (‘The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.’); and s 3(6)(a) (‘The Lord Chancellor must have regard to the need to defend that independence’).
42 Lord Irvine of Lairg, ‘Activism and Restraint: Human Rights and the Interpretative Process’ (1999) European Human Rights Law Review 350, 356.
43 The Bar Council, ‘Bar Council Calls on Lord Chancellor to Condemn Attacks on Judiciary’, 5 November 2016, http://www.barcouncil.org.uk/media-centre/news-and-press-releases/2016/november/bar-council-calls-on-lord-chancellor-to-condemn-attacks-on-judiciary.
44 After this resolution, the Bar Council, led by its Chairman, appeared on more than 2,000 television, radio, online and print media outlets: The Bar Council, ‘10 of the Things the Bar Council Did in November’, 14 December 2016, http://www.barcouncil.org.uk/media-centre/news-and-press-releases/2016/december/10-of-the-things-the-bar-council-did-in-november.
45 ‘Brexit Ruling: Lord Chancellor Backs Judiciary Amid Row’, BBC, 5 November 2016, http://www.bbc.co.uk/news/uk-politics-37883576.
46 ibid.
47 David Boffey, ‘Brexit: Lawyers Confront Liz Truss over “Dangerous” Abuse of Judges’, The Guardian, 6 November 2016, https://www.theguardian.com/politics/2016/nov/05/lawyers-war-liz-truss-over-abuse-judges-brexit-barristers.
48 The Financial Times, https://www.ft.com/content/5f18787e-0b1b-11e7-ac5a-903b21361b43 (accessible by paid subscription).
49 Select Committee on the Constitution, ‘Corrected Oral Evidence: Oral Evidence Session with the Lord Chief Justice’, 22 March 2017, http://www.parliament.uk/documents/lords-committees/constitution/Annual-evidence-2016-17/CC220317LCJ.pdf (emphases added).
50 Select Committee on the Constitution, ‘Corrected Oral Evidence: Oral Evidence Session with the President and Deputy President of the Supreme Court’, 29 March 2017, http://www.parliament.uk/documents/lords-committees/constitution/Annual-evidence-2016-17/CC290317SupremeCourt.pdf (emphases added).
51 Guy Adams, ‘The Judges and the People: Next Week, 11 Unaccountable Individuals will Consider a Case that Could Thwart the Will of the Majority on Brexit. The Mail Makes No Apology for Revealing Their Views – and Many Have Links to Europe’, MailOnline, 2 December 2016, http://www.dailymail.co.uk/news/article-3995754/The-judges-people-week-11-unaccountable-individuals-consider-case-help-thwart-majority-Brexit-Mail-makes-no-apology-revealing-views-links-Europe.html#comments.
52 Ministry of Justice, Lord Chancellor Response to Supreme Court Judgment, 24 January 2017, https://www.gov.uk/government/news/lord-chancellor-response-to-supreme-court-judgment.
53 See the headline and accompanying analysis in Jane Martinson, ‘The Daily Mail Leads the Way in Brexit Bile’, The Guardian, 24 January 2017, https://www.theguardian.com/commentisfree/2017/jan/24/daily-mail-brexit-tabloid-press-britain-european-union.
54 Miller (n 11) [3] (emphasis added).
55 ibid Lord Hughes, para [276] (emphasis added).
56 Tom Embury-Dennis, ‘Brexit Ruling: Gina Miller Reveals “Horrible” Abuse since Launching Article 50 Legal Challenge’, The Independent, 24 January 2017, http://www.independent.co.uk/news/uk/home-news/brexit-ruling-gina-miller-abuse-article-50-legal-challenge-supreme-court-a7544341.html.
