Judges sometimes disagree. What if the Supreme Court is split after this week’s appeal hearing on the prorogation of Parliament? With 11 Supreme Court Justices sitting in this case, that could easily happen. Will Justices who find that the Prime Minister acted unlawfully in procuring the suspension of Parliament be labelled as ‘Remainers’ or even ‘Enemies of the People’, language which the Daily Mail notoriously resorted to in 2016? Could those who reach the opposite conclusion perhaps be portrayed as ‘Leavers’ who prefer to stand aside while the government pursues its Brexit policy without parliamentary scrutiny for five weeks? We should not divide the Supreme Court into Leavers and Remainers, argues Jan van Zyl Smit (Bingham Centre for the Rule of Law). The need for a better public understanding of our judiciary has never been greater.
Tempting though such criticisms of judges may be when passions are running high, they represent ways of thinking about the judiciary that not only are inaccurate but also threaten to undermine trust in our independent court system, a cornerstone of the Rule of Law. The need for better public understanding of how UK judges are appointed and how they decide cases has rarely been greater. Accusations of political bias do occur elsewhere, notably in the US, where appointments are much more politicised and the Supreme Court itself may have fuelled that narrative with its often bitterly worded disagreements, typically in 5:4 split decisions. However, the basic role of US judges in upholding a written Constitution is relatively well understood. In the UK, the degree of confusion about the role of courts and the judiciary – witness the many media reports that still find it necessary to explain what the UK Supreme Court is – means that greater harm could be done by influential figures who exploit the drama of Brexit to attack the judiciary.
We have already seen the anti-judge fall-out from contrasting court decisions on prorogation in the English and Scottish courts, with Downing Street sources briefing The Sun on 11 September that ‘The legal activists choose the Scottish courts for a reason.’ A government minister, Kwasi Kwarteng, later declared that ‘The extent to which lawyers and judges are interfering in politics is something that concerns many people,’ and that ‘many people… are saying that the judges are biased.’ He specifically claimed that ‘many Leave voters … are beginning to question the partiality of the judges,’ while stating that he personally believed that judges were impartial. Brexit Party leader Nigel Farage went further, complaining that the Scottish decision ‘smells of judicial interference’ and alleging that judges were part of an establishment that was ‘Remain almost to the last man and woman’.
What is an effective way of counteracting such comments? The Lord Chancellor, Robert Buckland QC, tweeted that ‘Our judges are renowned around the world for their excellence and impartiality and I have total confidence in their independence in every case’, while the Prime Minister spoke of the ‘awe and admiration’ for UK judges around the world. Their affirmation was strong, and swiftly issued, but expressed in fairly general terms. Leave supporters swayed by the remarks I have quoted might need a more detailed rebuttal. A good place to start is the notion of judges ‘interfering’ in politics. Judges have no ability to interfere in anything unless someone brings a case to court. Once presented with a case, they have a duty to decide it in accordance with the law – which may be a difficult task, as the law on some of the constitutional issues raised by Brexit is a complex web of Acts of Parliament, prerogative powers and common law precedents laid down over centuries. Judges should be judged not on the outcome of their decisions but on whether the reasoning is sound. Regrettably, the critique voiced with varying degrees of explicit or implicit endorsement by Kwarteng, Farage and the ‘Downing Street sources’ came before the Scottish Court of Session had released its full judgment. Remarks by Lady Hale at the close of the appeal hearing have been taken as suggesting that the Supreme Court will give a detailed judgment when it announces its decision. That is probably a good thing. Particularly if a majority of the Supreme Court were to find that the prorogation was unlawfully procured, it would be desirable if they could explain in accessible language why, as my colleague Jack Simson Caird has argued, it is not undemocratic for an independent court to decide on the legality of this Executive action.
Looking beyond Brexit, I would argue that UK judges are far from complacent about what judicial independence means and how to live up to it. Since the 1990s, senior judges have played their part in a series of largely unsung reforms that aim to build on historic strengths of the UK judiciary while enhancing its independence and accountability. One of the main areas of reform relates to judicial appointments. Since the Act of Settlement 1700, judges have been appointed with security of tenure, a crucial guarantee of judicial independence since it prevented the monarch or ministers threatening a judge with arbitrary dismissal. However, tenured judges can still be corrupt or incompetent (and sadly this remains a problem in many countries). Judicial independence is most valuable when it encourages judges to strive for impartiality and justice in the interpretation and application of law. Such behavioural norms cannot simply be legislated, but have to develop organically over time. Some of the credit for the standards that UK judges have achieved must go to the fact that for centuries the Lord Chancellor recruited judges from the Bar, which evolved its own ethical traditions and competitive approach to legal excellence. A serious shortcoming of this system was that it tended to perpetuate a judiciary that was predominantly male, white and socially privileged. The Constitutional Reform Act 2005 transferred most judicial recruitment functions to a Judicial Appointments Commission (JAC) and related bodies, which bring together judges, lawyers and lay people to oversee the selection of judges. The JAC has developed a process which aims to attract a more diverse body of applicants in terms of gender and racial or ethnic background, using selection criteria that have been reviewed and revised to consider the full range of ways in which candidates can demonstrate their ability to judge impartially, fairly and with legal and intellectual rigour.
When the Prime Minister and the Lord Chancellor spoke last week about the world-wide renown of the UK judiciary, it is important to understand that this reputation is not sustained by romantic views of the British legal system and its history. Every year, international businesses make hard-nosed decision to refer their disputes to UK courts, and they rely on the impartiality and legal excellence of the current UK judiciary in doing so.
Much more could be said in support of the independence and quality of the UK judiciary. Why then, should we worry about ill-informed criticisms? John Stuart Mill famously argued that freedom of speech should extend to opinions that are demonstrably wrong, on the ground that a society’s progress towards truth discovery is better served if wrong views are vigorously challenged rather than suppressed. That argument explains why it should not be a crime to call into question the independence or impartiality of the judiciary. But it does not take away the moral duty of those who have political influence – in this case ‘Downing Street sources’, Kwarteng and Farage – to act responsibly when they speak about the judiciary and court decisions. Their statements contribute to normalising a crude scepticism that ignores the legally complex and personally demanding work that judges have dedicated themselves to performing, and instead implies that political motives determine their decisions. Such scepticism thrives in an environment of limited public understanding of the courts, and it erodes the Rule of Law. Judges can do something about this by producing judgments that are accessibly written, but no single judgment can provide readers with the necessary background understanding of the institutional role of the courts in the UK constitution. In the fevered era of Brexit, our judiciary needs all the help it can get.
This article gives the views of the author, and not the position of LSE Brexit, nor of the London School of Economics. Photo by DAVID ILIFF. License: CC BY-SA 3.0
Dr Jan van Zyl Smit is Senior Research Fellow at the Bingham Centre for the Rule of Law, where he leads the Centre’s programme on Justice Systems and the Rule of Law. He is the author of The Appointment, Tenure and Removal of Judges under Commonwealth Principles (2015).
Hear hear! I hope we won’t get any rubbish about “Enemies of the people” on this blog, whatever the Supreme Court decides.
Of course Supreme Court judges will not be able to avoid being influenced by their own political prejudices. I don’t suppose anyone believes that there is one true way of answering any legal question and their job is restricted to discerning it. But we should at least give the Supreme Court the benefit of the doubt in assuming that they have tried to reach their decisions as well as they can in accordance with existing law and precedent, unless there is strong evidence to the contrary. Anyone who wants to criticise the Supreme Court in general needs to come up with constructive ideas about how it could be organised better.
The Downing Street comment about opponents of prorogation choosing Scotland for a reason is not necessarily reprehensible. One would expect Scottish judges to reach their decisions in a different way to Welsh/English judges, because Scottish judges follow Scots law. How on earth the Supreme Court is to reconcile differences between the different legal systems present in the UK in cases like this is beyond me. But I wish Kwasi Kwarteng and Nigel Farage would not be so quick to criticise judges who reach decisions they don’t like. Since neither of them appear to have any formal legal training, they should be more careful.
I invite those unhappy with the Supreme Court’s decision to consider how they would have reacted if the decision had gone 11-0 the other way and some Scottish nationalist had come here to complain about how, once again, the Westminster establishment had trampled on the will of the Scottish people and the Court of Session.
Problem is that to decide the prorogation was unlawful, the Supreme Court is being asked to read the PM’s mind. Whether or not these wise men and women are biased or not will depend upon their willingness to engage in mind-reading.
Amen to that – like it or not they have now stepped into a political minefield and have now set a president that will haunt for decades to come. Is the UK now effectively “ruled” by 11 unelected Lords?
This article, although well written, demonstrates extreme naivety about government, politics and the judiciary.
Total human impartiality only exists in a utopia but not in today’s highly confrontational environment. Whether a person is pro or anti brexit, this should not stop anyone from seeing that during the last three years, the pro European side has done everything legal and illegal to change the direction this country is going in. Conflicts of interest abound. Pro Brexit voices are squashed and pro Europeans are given prominence by most of the press and media. Add to these facts, a majority of MPs who are clearly anti Brexit, laws that protect their pro European interests have been pushed through unchallenged. The speaker has broken every rule and process his position stands for. To then believe that the Supreme court judges are immune from all of this is to stick one’s head in the sand. Today is a very sad day for democracy in the UK, that has seen a total abuse in every shape and form of the democratic process ever since the referendum landed a result that our leaders never dreamt was possible.
I agree totally with Thomas. It s a disgrace the way Remainers in Parliament and the Supreme Court are ignoring the 17 million people who voted to leave the EU. The EU has behaved with contempt towards our MEPs. Do they really think that behaving so rudely towards our people will persuade us to stay. The EU countries are all in trouble and falling apart, so I can t understand why remainers are using every dirty trick to stay. – have they no pride.
I totally agree with Thomas and Davies. Who elected Gina Miller? Who is behind her? Where is the money coming from? Why making negotiations so difficult for the PM? Do remainders (parliament & judges) are lawful ? Where is the patriotism? Elected be their constituency and voting against the will of their electorate?
How many of the 11 judges were retainers?
How many if the 11 judges took the people’s vote into consideration?
The speaker is a remainer and his performance was evident
More questions should be asked of the court. The parliament is trying it on, but it is the judges who should be fairer to the country. It was a bad decision, it was obvious
And I am not even English
Well cats out the bag. Spider overcomes the Hulk.
Lady Hale at it again with her controversial seminars and presentations outing our her political philosophy to students.
How a single judge can reach such a highly prestigious position, while continously undermining the same organisation she is representing over a number of years is beyond me.
I would still like to know how many of them voted to leave and how many voted to remain. Total impartiality is utopia, I agree with the previous comment.
How democratic is LibDems statement that they will cancel Brexit democratically voted for by majority. Will someone take that MP to court over legality of it, if it happens?
Now that the judiciary is involved in politics and the constitution, I would recommend that ‘the people’ around 17million of them at least commence a court case against all members of parliament who refuse to enact the referendum result and the will of the people, who are supposed to have the ultimate sovereignty.
I would make a considerable donation to help this action and restore true democracy
@Larissa Limarova …. you are COMPLETELY Right …. their personal agenda IS important. Because it has very obviously swayed their biased decision. Unless this is a Remoaner page, then the impartiality suggests we do need to know WHICH of them is a Remainer, and which Leave. I would suggest, that as part of the Elite, and having the need to stick their noses into politics and the constitution, where they have actually committed a crime with this illegal decision … it is they who have committed a crime against the People of the country.
When our Judiciary system is prepared to accept that the woman who is making this case, a NON-British person, who has no right to be using foreign funds to try to circumvent the will of the Majority, then it seems evident that they have become as corrupt as 90% of the government, and that they should ALL be investigated.
Why are two of them deeply involved with the EU courts? …. They should not have been allowed to be on the bench either.
Lord Reed – One of the court’s two Scottish justices, he previously served as a judge in Scotland and sometimes sits as a judge at the European Court of Human Rights and the Hong Kong Court of Final Appeal. Should definitely NOT have been allowed to take part.
Lady Arden – She became a member of the Permanent Court of Arbitration in The Hague in 2011, and sits as a judge of the European Court of Human Rights in Strasbourg. Her standing in the EU also means she should NOT have been allowed to take part, as she too, is biased.
And …. it does carry weight to know who was biased against Brexit, as they are Remainers, and are part of the problem. People who do not wish to respect DEMOCRACY, and are doing everything in their power to scupper the will of the Majority. …. .Let the screams and shouts of ***phobic etc begin.
@Diane – how do we get hold of the 17.45 million (plus) who voted to Leave. I would suggest a lot of LEAVE ballots were conveniently “lost” and “switched” …. but, the issue is most of the LEAVE voters believe that Democracy will not fail, and sit waiting for their vote to be honoured. When it is proven time and time again, over the last three years that the government has no intention of honouring or standing by their statements made in public ….
“Camoron – A once in a lifetime event. We, the government WILL institute whatever YOU, the People vote” …. etc. Chukka whatshisface …. swore to uphold the results. So many of them swore to uphold the vote, and are now doing everything they can to destroy the last vestiges of decency and democracy, in a Fascist manner.
We need ALL Leavers to get up from behind their keyboards, off social media, and out in front of parliament, during the week when it matters. No time anymore to be a Keyboard Warrior! …. Seems the remoaners have loads of spare time during the week when THEY should be working or looking for work, to be publicly making a spectacle of themselves, and then having it blamed on the Right Minded.
If we don’t leave do you really think 17.4 million people who voted to leave will shrug their shoulders and hope next time democracy works for them? Nothing lasts for ever, even a once stable civilisation.