Judges take an oath “to do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.” If a new report by a group of parliamentarians is to be believed, there are reasons to fear that Justices of the Supreme Court have betrayed their oath, yielding to (indirect) pressure from, and even threats made by, ministers. The report’s assertions are groundless and will no doubt surprise ministers who of course remain constantly exposed to proceedings for judicial review. The significance of the report, the handiwork of the recently founded All-Party Parliamentary Group (APPG) on Democracy and the Constitution, is that it reveals the modus operandi of a subset of the legal profession, which is to weaponise judicial independence for political advantage, not only to score points off the government but now also to shame and browbeat the judges themselves.
The report asserts that for several decades, but especially since 2016, ministers have been acting unconstitutionally, attacking judges by misrepresenting their decisions or by threatening reform in retaliation against decisions that displease them. The APPG places particular stress on the willingness of law officers to criticise judgments, denouncing Sir Geoffrey Cox QC MP, then Attorney General, for his response to the Supreme Court’s prorogation judgment and Suella Braverman QC, our current Attorney General, for her criticism of various judgments.
Nothing in the report warrants the conclusion that judges, or judicial independence, are under attack. Sir Geoffrey’s response to the prorogation judgment repeatedly affirmed the Supreme Court’s right to make the decision and the House of Commons’s duty to accept it, before noting that the Court had invented a new legal rule, a comment entirely warranted and shared by many leading academic lawyers. Suella Braverman’s criticism of select Supreme Court judgments, in a speech to the Public Law Project (not to Policy Exchange as the report otherwise twice asserts), was not in the least improper, as Conor Casey and John Larkin QC made clear in a subsequent Policy Exchange paper. Sir Robert Buckland QC MP’s speech to Policy Exchange, in his last days as Lord Chancellor, was a powerful discussion of the fundamentals of administrative law, scarcely a tabloid attack on the judges.
One can lament the occasional intemperate remark in the newspapers or pine for a restoration of the pre-2005 office of the Lord Chancellor, as many judges and lawyers do, without asserting that “Ministers’ attacks on judges threaten the constitution” as the APPG’s lurid press release put it. Parliamentarians, including ministers and law officers, are responsible for the constitution and should think hard about the role of the courts, which includes evaluating the merits of recent trends in jurisprudence and considering whether legal change is needed in response. The APPG’s report reads like special pleading from a subset of the legal profession (no surprise perhaps in view of the Secretariat, a newly registered charity seemingly made up entirely of lawyers), denouncing ministers for having the temerity to respond to judgments and asserting, wrongly and tendentiously, that law officers have misunderstood them.
The most significant part of the report is its assertion that in a series of decisions across the last two years the Supreme Court appears to have been influenced by ministerial pressure, adopting “new positions which appear to fall closer into line with the executive’s political preferences”. This is a very serious charge. True, the report notes that this appearance may only be apparent rather than real but it clearly insinuates that there is a strong risk that judges have been suborned.
The charge is hard to prove (or disprove), which is a reason to be very careful before making it. The APPG’s method is to review seven Supreme Court decisions, or at least to publish analysis of those decisions undertaken by two lawyers involved in the Secretariat. The analysis is weak, disavowing (implausibly) any intention to evaluate the merits of the judgments in question, but at the same time implying that each is unsupported by sound legal reasons. The Supreme Court’s jurisprudence deserves better – fairer – consideration. It is perfectly fine for the lawyers in question – or anyone else – to disagree with the Supreme Court’s judgments. It is disgraceful to imply, without compelling reasons, that the likely explanation for them is that the Supreme Court has not fairly decided the cases in question but has put a thumb on the scales in the executive’s favour.
Like the law officers, I have welcomed some of the Supreme Court’s recent case law. I argued that the Court of Appeal’s judgment in the Shamima Begum case should be overturned and so of course welcomed the Supreme Court’s decision to this effect. I commended the Supreme Court’s decisions in December last year which corrected, at least in part, misinterpretations of the Human Rights Act 1998 to which Policy Exchange’s Judicial Power Project had long drawn attention. I also suggested, in 2019, that Lord Reed’s appointment as President of the Supreme Court was a very good thing and, subject to the views of the many new appointees to the Court, might well result in a return to constitutional orthodoxy. It is early days but this seems to be happening.
In questioning the integrity of the Supreme Court, the APPG is in company with Jolyon Maugham QC, of the Good Law Project, who predicted in Prospect in December 2019 that the judges would change their behaviour in light of the government’s new majority. Judging from subsequent coverage, this may be the editorial line of Prospect Magazine, one of whose editors gave evidence to the APPG suggesting that the Court had adopted the executive’s talking points. This should by now be a familiar trope. Electoral defeat, or losing a referendum, is not a function of true popular choice, or one’s own mistakes, but must have been caused by a conspiracy, foreign interference or dark money. It is nonetheless disorienting to see this tactic now deployed in relation to the judiciary, with a change in jurisprudence not addressed on the merits but explained away on the grounds that it was procured by unconstitutional means.
I expect the APPG truly fears that judicial independence is under attack. But the truth is that judicial independence in the UK is robust and well-grounded, as Professor Graham Gee’s recent lecture to Policy Exchange makes vividly clear. The APPG had Professor Gee’s lecture to hand but dismissed it as a “thin” account of judicial independence. Not so. Unlike the APPG’s report, the lecture powerfully explains the political foundations of judicial independence in our tradition, which make it possible, for very good reason, for judges to adjudicate disputes before them, including with the executive, free from interference or pressure. The APPG’s report is in part an instance of the problem that Professor Gee noted in his lecture – the tendency of some lawyers to weaponise judicial independence to disarm criticism of particular judgments and to chill public discussion about the role of the courts in our constitution. The horrible irony of the report is that in weaponising judicial independence to attack ministers, the APPG commits the sin it purports to abhor, questioning the impartiality of the courts and unjustly attacking judicial integrity.
Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government in the University of Oxford