Joshua Rozenberg’s ‘A judge-shaming list is bad for justice’published in The Guardian on 12 May 2016.

A judge-shaming list is bad for justice

Judges shouldn’t be frightened to set precedents. A list of those that have ‘gone too far’ – including over a Guardian freedom of information request on the Prince of Wales’s letters – risks deterring justice

Was the UK supreme court’s judgment last year allowing the Guardian to publish letters written to ministers by the Prince of Wales a “problematic” case?

It certainly caused problems for the judges who heard it over a 10-year period. They disagreed over whether to uphold the attorney general’s veto on a freedom of information request made by the reporter Rob Evans. As I noted at the time, Lord Wilson even accused his fellow supreme court justices of undermining parliamentary sovereignty.

I don’t regard this ruling as problematic in the sense of transgressing the proper limits of the judicial role. And yet that’s exactly how the judgment in Evans v Attorney General is seen by the Judicial Power Project, a small team of lawyers supported by the Policy Exchange thinktank. Evans is one of 50 such cases included this week in a list compiled by the project from suggestions it had solicited.

The thinking behind the project is that the judges have gone too far. Or, as its website puts it, “our concern is that the judicial role is expanding in ways that threaten constitutional self-government and the rule of law”. This can be seen from the tendentious way it has summarised the Evans case:

“The supreme court ignores the limits of the judicial role by rewriting the Freedom of Information Act to effectively remove the power to prevent the publication of information that the UK parliament had conferred on the attorney general.”

But Mark Elliott, professor of public law at the University of Cambridge, prefers analternative reading of the judgment:

“The supreme court interpreted the ‘ministerial veto’ power in the Freedom of Information Act in the light of the constitutional principles of the rule of law and the separation of powers. The court concluded that the legislation, properly interpreted, sanctioned executive override of the judgment of a superior court of record only in very limited circumstances.”

Elliott has written a lengthy but rewarding analysis of the Guardian’s “constitutional blockbuster” case for the journal Public Law. He makes the fundamental point that if parliament doesn’t like this, or any other judgment, it can always overturn it – so long as parliament makes its intentions entirely clear.

But – and Elliott makes this point too – a case can also be listed by the project as problematic because it does not go far enough. Liversidge v Anderson was the famous ruling by the law lords in 1941, during the darkest days of the war, on the home secretary’s powers to detain without trial anyone he reasonably believed to have been “of hostile origin or associations”

 The judgment is remembered for Lord Atkin’s powerful dissent: “I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister.” But, as the project says, “the actual decision of the majority of the law lords showed excessive deference to the executive’s wide discretionary powers in wartime”.

The 50 cases complied by the project include some that appear to be too European for its liking. There’s Hirst: “The Strasbourg court stretches the ‘living instrument’ approach to interpretation to breaking point by holding that the UK’s blanket ban on prisoner voting is contrary to the ECHR.”

But also Benkharbouche: “In a case involving claims of mistreatment brought by foreign workers in embassies in London, the court of appeal determined that article 47 of the EU Charter (right to effective remedies) … resulted in the disapplication of primary UK legislation”. It did indeed; but that was surely what parliament had intended.

These 50 cases are also problematic in the sense that we may argue over whether the judges reached the right result. Take the well-known example of Rookes v Barnard, decided by the law lords in 1964. The project summarises it thus:

“With no regard for the political sensitivities surrounding the regulation of strike action, the law lords developed the economic tort of intimidation, the effect of which was to bypass the statutory immunity for organisers of strike action. Parliament enacted the Trade Disputes Act 1965 to reverse the decision.”

Fine. But compare that with Marina Litvinenko’s successful challenge two years ago to the home secretary’s refusal to grant the public inquiry that would establish how her husband had been murdered by Russian agents in London.

With the benefit of hindsight, we can see that the high court got it exactly right. But the project’s summary says dismissively that the judges “departed from the traditional reach of judicial review for no reason other than that they disagreed with the minister’s decision”.

Nobody wants to go back to the days of Lord Denning’s “palm tree justice”, when the law applied by his court turned out to be pretty much whatever he wanted the law to be. But nobody wants to go back to the time when the law turned out to be pretty much what the government wanted it to be, either.

The law, as applied by the courts, needs to be certain and predictable. But we don’t need the sort of judges who are too frightened to do anything for the first time. It seems from the project’s summaries that many of the cases have been included because the judges who decided them tried not only to follow the law but also to deliver justice. In my book that’s qualifies you for the hall of fame, not shame.

Joshua Rozenberg

Professor Graham Gee from the University of Sheffield offers the following response:

There is no shame in debating judicial power

Should judges be beyond criticism where they exceed the proper limits of their role? Joshua Rozenberg comes close to suggesting that they should lest our judges become “too frightened to do anything for the first time”.

At Policy Exchange’s Judicial Power Project, we believe that maintaining the rule of law requires full and honest debate about those cases in which judges depart from the law or forget the limits of their role. Criticism is an important restraint on judicial decision-making and a bulwark of the rule of law and judicial independence. This is after all part of why judges give reasons for their decisions.

Last week we published a list of 50 “problematic” cases. Included on our list was Evans v Atorney General, a case triggered by a freedom of information request to obtain Prince Charles’s correspondence with ministers. In our paper on Evans, we explained how the UK Supreme Court undermined the rule of law by effectively rewriting the Freedom of Information Act. As a result, the Court overturned a ministerial decision about the public interest. It did so even though Parliament chose to confer responsibility for the public interest on that minister. This was a flagrant example of judicial adventurism.

Joshua Rozenberg disagrees. He says that Parliament can always legislate to reverse the decision in Evans or any other decision that it does not like. This is true enough, although it understates the difficulties that legislators confront if seeking to reverse a judicial decision. More importantly, however, that Parliament can overrule dubious decisions is no excuse for a court to knowingly depart from the law in the first place.

Several of the cases on our list are problematic because they left no room for political accountability. A good example is R (Litvinenko), where the High Court quashed the minister’s refusal to hold a public inquiry into the murder of Alexander Litvinenko. Rozenberg says that “[w]ith the benefit of hindsight, we can see that the High Court got it exactly right”. Not so fast.

It is clear from the Inquiries Act that Parliament intended the minister to have control over and ultimately responsibility for public inquiries. Despite the scheme of the Act, the High Court substituted its own view for that of the minister, placing little weight on the fact that the Home Secretary could be called to account in Parliament for her refusal to hold a public inquiry. This judicial intervention took the court well outside its competence and muddied an otherwise clear line of parliamentary accountability.

Our list includes cases from European and domestic courts. This leads Rozenberg to speculate that some cases appear to be “too European” for our liking. Our concern is with rule by any court, but it is true that there are particular problems with rule by foreign courts.

The European Court of Human Rights has gone far beyond the commitments agreed by the signatories to the ECHR and its decisions are often poorly reasoned. The Human Rights Act has made this Court’s case law much more significant in domestic law and increased the pressure on the Government and Parliament to conform to its rulings. Some of the EU Court of Justice’s decisions are also problematic. Even former Attorney General Dominic Grieve who views the European Court of Human Rights as “benign” acknowledges that the EU Court has “predatory qualities”.

The rule of law is not the same as the rule of courts. If judges are to stay within their proper constitutional role, they need to be supported and restrained by a healthy legal culture. Unfortunately, judges are increasingly surrounded by an echo chamber in which lawyers, academics and commentators cheer them on to depart from settled law in pursuit of the ideological fashion of the day. In this new legal culture, criticism of the ratcheting up of judicial power is not lightly brooked, which obscures both the extent to which judicial power has increased and the risks it poses.

Politicians, lawyers and the public must always be vigilant to the risk that judges may inappropriately and even inadvertently misuse their powers. A debate about the cases where judges exceed their role is one that judges should welcome since, as Professor Aileen McHarg explains, “problematic cases are problematic not only for the violence they do to…democracy or the Rule of Law, but also because of their adverse impact on judges’ reputation for independence and impartiality”.

Some expansion of judicial power has occurred at Parliament’s direction, or at least with its acquiescence. But there are also important ways in which the judiciary has assumed far-reaching powers without Parliament’s approval. This expansion poses real risks to the rule of law, judicial independence, and democratic self-government. It should be openly debated, and may legitimately be opposed. Like other public institutions, judges and the decisions they make cannot be immune from reasoned public criticism.

Graham Gee
University of Sheffield