Politics and the Judiciary

Politics and the Judiciary

The Lord Chief Justice, Lord Judge, has warned in his annual press conference of the dangers of judges making decisions on political rather than strictly legal principles. Speaking at the Royal Courts of Justice on 6 December 2011, the Lord Chief Justice was commenting on an issue that had been raised by Jonathan Sumption QC in his F A Mann Lecture at Lincoln’s Inn: ‘Judicial and Political Decision Making: The Uncertain Boundary’ (8 November 2011).

Sumption considered the role of judicial review – the process by which actions of public authorities may be examined by the courts to ensure their decisions have not been made on illegal or perverse grounds. When undertaking such reviews, judges must tread a fine line between determining what has been done that is contrary to law and what contravenes their sense of justice. Lord Diplock summed this up in R v Inland Revenue Commissioners ex parte National Federation of Self-Employed and Small Businesses [1] when he stated that the Court could only review whether an act was unlawful or not, and could not speculate as to whether a lawful act was ‘unfair or unwise’.

Since then, a number of judicial review cases have blurred the area between reviewing a public body’s legal powers and the merits of the policies they have made. This was the subject matter of Sumption’s lecture. Lord Justice Laws in R v Secretary of State for Education and Employment ex parte Begbie [2] put the position of judges more subtly. He said that questions that affected individuals by a particular application of policy could be resolved by the Court, but where such questions had implications for society at large, the judges would need to ‘don the garb of policy-maker, which they cannot wear’.

In his recent comments, the Lord Chief Justice stated that:

Judges have to be careful to remember that we are enforcing the law. As to that, we have no choice. We enforce the law as we find it to be. I think we have to be careful to remember that we cannot administer the responsibilities which others have. So local authorities have responsibilities, and so on and so forth. I think there is occasionally a danger of an overlap between us deciding what the law is and saying what it is, and then making a judgment accordingly. Occasionally – and I suppose it is inevitable – there is an overlap where what we are doing, or the orders that we make, actually impact on the administration for which others are responsible… We have to be careful to make sure that we stay within our proper function.

In remaining within their proper functions, bodies and individuals invested with the legal power to make policy decisions must not attempt to circumvent or oppress judicial review, while judges must not stray into the area of determining what policy should be.

Judges rightly enjoy considerable legal privileges protecting the integrity of their decisions. They are immune from prosecution or civil action in respect of their official functions. Furthermore, they are unaccountable to Parliament or indeed to any democratically elected body. Members of the Government are in turn expressly prohibited from attempting to influence judicial decisions. It is a healthy sign of a just society that the determination of legal rights is made by a body independent of those framing policy.

This being the case, the judiciary must recognise that its right to judge cases without accountability carries with it certain responsibilities. One of the most significant of these is the duty to apply the law as it stands; where interpretation of statute is necessary, it must seek to determine the intention of Parliament in passing the legislation. It should not seek to question and thereby change policy. The result of this would be the removal of policy decisions from a democratically elected Parliament to an absolutely unaccountable body of judges.

The separation of executive and judicial powers in the UK is more complete than at any time in the past. The Lord Chancellor, whose position is a political appointment, is no longer head of the judiciary. A Supreme Court has now been established to distance the ‘Law Lords’ from the parliamentary business of the House of Lords. Although the separation of judges from the House of Lords is not yet complete – the first Justices of the Supreme Court having been drawn from the existing Law Lords – a set of conventions still preserve the independence of leading judges. Those judges who sit in the House of Lords are full members of that assembly and may speak in debates and vote on the same basis as any other life peer. However, by convention, serving judges do not speak upon party political issues, precisely because of the danger this poses to their integrity regarding the administration of justice. It would therefore be a regressive step to approve of the interference of judges in the decisions of the Government, except of course when they are made on an illegal or irrational basis.

The ideal constitutional relationship between judges and decision-makers was summed up by Lord Denning (then Lord Justice Denning) in his Presidential Address to the Holdsworth Club in 1950. There he stated that:

No member of the Government, no Member of Parliament and no official of any government department has any right whatever to direct or influence or interfere with the decisions of any of the judges. It is the sure knowledge of this that gives the people their confidence in judges. The critical test which they must pass if they are to receive the confidence of the people is that they must be independent of the executive. [3]

In order for the public to have faith in the judiciary, it must be reassured that there is no political partiality on the part of judges, that the courts do not seek to meddle in policy-making where they have no accountability, and that their decisions represent a true interpretation of the legislative principles that have been handed to them. The Lord Chief Justice is quite right to highlight the dangers of the politician in the courtroom, in protecting both the integrity of the judiciary and the proper function of the State.

Jeremy Goldsmith

A former historian, now studying the BPTC at Nottingham Law School

  • [1] [1982] AC 617
    [2] [2000] 1 WLR 1115
    [3] Quoted in M Allen and B Thompson, Cases and Materials on Constitutional and Administrative Law, 9th ed., Oxford, 2008, p. 172
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