UK Political Updates Series: The Relationship Between Judges and Politicians

Article by Eliza Liddicott

The Student Lawyer is back with a third and final political update, focusing on the crossover between the law and politics and the relationship between the branches of government. This update, however, comes from an alternative perspective: An election has occurred.

Whilst the previous posts were constructed in a time of greater uncertainty, our political analysis will conclude knowing that Boris Johnson will remain PM, though the goal of leaving will be at the forefront of his mind – a goal made all the more achievable due to the increased Conservative majority. When analysing the relations between law and politics, we must remember that the PM has had run-ins with the judiciary in the past, and so the recent result of his continued premiership gives rise to a future reunion. Moreover, as the Supreme Court reaches its 10-year anniversary, it has to be said that this court has not been afraid to challenge the executive when it feels necessary. Thus, to conclude our series, a reflection on this governmental and judicial exchange is needed. And, in practice for potential advocacy, future lawyers can go on to debate the possibility of additional conflict, or even consider, crucially, what the best role is for judges when challenging and changing the political world.

First things first: The Supreme Court

• The most senior judges in the UK were formerly members of the House of Lords (known as ‘Law Lords’) and thus evidenced a fusion between the legislature and the judiciary. However, due to the authorisation of the Constitutional Reform Act 2005, the independent UK Supreme Court was established in 2009, resulting in these same senior judges being separated from Parliament and exercising their jurisdiction elsewhere.
• The Court, with its 12 Justices, is the highest criminal court of appeal for the whole of the UK, and the highest civil appeals court for England, Wales and Northern Ireland – with these appeals only being heard on cases of Constitutional importance or those that affect the majority of the nation.
• Though she is stepping down next year, the current head of the Court is Lady Hale, known for her dynamic work in family law, for her aim of defying traditional practices and assumptions in the legal profession and, of course, for her delivering the crucial Parliamentary Prorogation ruling.
• Sitting in a panel of an odd number (avoiding tied judgements), the Justices hear around 100 appeals a year, allowing members of the public to sit in the Court for increased transparency, and keep us up to date with the latest news online. A notable case, for example, for the first time held the police liable in negligence for failures to follow correct procedures when investigating sexual abuse claims made against taxi driver John Warboys. The ruling (Commissioner of Police of the Metropolis v DSD and Anor [2018] UKSC 11), declared that the police had breached Article 3 ECHR, concerning freedom from torture and inhumane treatment, and continues to claim a presence in the news as Warboys has recently been given two further life sentences for pas attacks.

As the UK has an uncodified and unwritten Constitution, governmental rules are not found in a single authoritative document, sovereignty is placed with Parliament (which is usually led by the PM). This means that the Court cannot overturn an action of the PM or law passed by Parliament. However, some actions can be ruled as ‘ultra vires’ (where the Court suggests that they are beyond the powers granted to conduct them) or ‘incompatible’ (with the Human Rights Act 1998), both of which is a serious suggestion that a review must occur. In contrast, the US Supreme Court (whose power is set out in a written, codified constitution), may strike down an Act of the US legislature or overturn a decision of the President.

Next: The relationship between the Judiciary, specifically the Justices of the Supreme Court, and the politicians 

As mentioned above, the Court has limited power with regard to striking down the actions of our elected representatives. However, this does not mean that there has been no judicial challenge to our politicians. One such challenge was an incompatibility declaration (R (on the application of Steinfeld and Keiden) v Secretary of State for the International Development [2018] UKSC 32), which saw the Court hold sections of the 2004 Civil Partnerships Act as incompatible with Articles 8 and 14 of the European Convention on Human Rights – the rights to a private life and not to be discriminated against, respectively. In light of 2013 legislation legalising gay marriage, the appellants alleged that as the 2004 Act did not allow opposite-sex couples to obtain a civil partnership, which this couple wanted to do, they were being discriminated against. After their case was dismissed at both the High Court and Court of Appeal, it turned to the Supreme Court to decide this question: whilst Parliament decided whether to abolish civil partnerships or extend them to opposite-sex couples, was a temporary period of unequal treatment justifiable? The answer, according to all Justices, was no, and Parliament was strongly recommended to remedy this issue.

Now we can turn to a more recent challenge: the 2019 Supreme Court ruling on Parliament’s Prorogation.

In October, after experiencing blockages in attempts to pass his Brexit deal, PM Boris Johnson (upon the consent of the Queen) Prorogued Parliament – suspending MPs from sitting and conducting their legislative role. Whilst prorogation is a usual procedure to prepare for the Queen’s speech, the decision to do so just weeks before October Brexit deadline sparked controversy, and opponents believed this would severely limit the input MPs could have on the final deal. However, after a short suspension, challenges were made as to the motive behind this shutting down of Parliament, and eventually, the Supreme Court was called upon for a resolution. The 11 Justices agreed that this suspension was ‘unlawful’, ‘null’ and ‘void’ – effectively stating that it should have never occurred, and MPs were to return to the House of Commons at once. This was because the suspension ‘stymied’ MPs from their role in scrutinizing legislation, despite Johnson’s claims that it was a needed break for government preparation. The outcome? MPs were called to resume their work immediately, and, though there were some objections, the PM and government accepted the ruling. Though this decision did not bar Johnson from further proroguing the Houses of Parliament, it mandated the provision of justification for preventing usual parliamentary business.

Finally: Where do we stand now? – a post-ruling, post-election dissection

• Did the Supreme Court cross too far into the political world? – A key objection to using the Courts as a mechanism for ending the suspension was that this was a ‘political matter’, not necessarily a question of Law in need of interpretation or clarification. However, the Justices defended their right to intervene in the dispute as, in their words, the ruling was not concerned with ‘when and on what terms’ the UK would exit the EU – an issue driving the political world – but rather the decision to, and motives behind, suspending MPs from their work. As the Supreme Court is the final arbiter for important constitutional matters, we can understand this reasoning. Moreover, Johnson’s preventing MPs from conducting the usual democratic debate procedures and attempting to push through his plans would have left the withdrawal in an uncertain state. Nevertheless, it is a duty of judges to remain politically neutral. Indeed, this was a crucial reason for establishing the Supreme Court itself. Thus, some still maintain the argument that the judges should have refrained from the ruling, and it may be suggested that the taking of such a decision by unelected judges departs from democracy to the same extent as Johnson’s proroguing of MPs did.

Will there be a future challenge by the PM? – in the run-up to the recent election, the Conservative Party manifesto offers ideas for changing the constitutional makeup of the UK, specifically where the senior judiciary is concerned. Though the Party did not highlight the plans to review the relationship between our branches of government, some suggest that this is a firm of ‘revenge’ after the prorogation ruling. There were also suggestions of an ‘update’ to the Human Rights Act 1998 – this being the Act that enshrines the European Convention on Human Rights into UK law, and which the Supreme Court has the power to measure governmental actions against (as seen with the 2018 case mentioned above). Though Parliamentary sovereignty allows for such a review to take place, at this unpredictable political time, any changes to rights provisions for UK citizens do cause concern.

The political and judicial worlds regularly coincide – on this point we cannot argue. Yet a vital debate, one that has long since been contemplated by politicians and lawyers alike is whether the UK should adopt a codified constitution, where a single, authoritative document would contain the rules that govern each branch of government, explain what powers can be exercised and where lines are drawn. A key benefit of this model is its provision of certainty and clarity at times of dilemma – for example, a written constitution may have provided a better guide as to how to handle the Brexit process. However, as seen in the US, a codified constitution that could place judges with equal power as politicians could cause conflict when opinions clash and raise doubts over accountability if unelected judges could actively strike down actions of elected politicians.

For student lawyers, not only it is important to learn the practical elements of the law, but we must also consider these wider questions, as they may feature in future university studies or simply be a topic for debate and discussion with colleagues.

This concludes TSL’s political updates series; however, as we progress with a new government, a new Brexit agenda and a new year, we will soon be back with posts on the crossover between the law and politics.