Rule by the Judiciary?

Last Tuesday’s decision by the Supreme Court to annul the prorogation of Parliament made headline news not just in the UK but across Europe.  I was in Norway on Tuesday and Wednesday, and it dominated even the Norwegian press – and it is seldom good news when events at home form the lead on the front page of other countries’ newspapers.

And this foreign interest is understandable, because the Supreme Court did not just say to the government “You acted illegally, and you must undo it”, but the far stronger “You acted illegally and we strike down your act so that it is as if it was not done at all”.  This was not expected and is indeed worthy of comment.

Some of the analysis of that momentous judgment has been lost in the aftermath of the very colourful scenes in the House of Commons the next day;  indeed if it was the Government’s intention to deflect attention from the Supreme Court’s decision by staging a near riot in the House, then it was brilliantly successful.

Nevertheless, we think it is valuable to look a little more closely at the judgment, and what it implies for the UK’s famously unwritten constitution and the relationship of the Judiciary to the other two arms of government, the Executive and the Legislature.  And in an echo of the film “Four Weddings and a Funeral”, we will do so with Four Observations and a Conclusion[1].

The first observation concerns the position of the Queen.  Some commentators have highlighted that although all the discussion in the Court was over the prime minister’s advice to the Queen, the actual act of prorogation (the act that was declared null and void) was technically an act of the Queen herself.  Acting on advice, certainly, and without the ability to demur from that advice, but technically her own act.  And this raises the question of whether the Supreme Court has just annulled an act of the sovereign.

But this is to overlook one important aspect of the monarchy, which is that in the British constitution, the Queen has two separate personae.  One is her personal position, in which she is an individual and cannot in British legal theory do any wrong.   The other is her position as head of government, ie head of the Executive, and what she does as head of government is in principle subject to judicial control.  This is the essence of the rule of law:  even the Executive has to comply with the law, and the Judiciary enforces this.

This distinction is less complicated than it sounds.  In a constitutional monarchy, ultimate sovereign power resides not in the person of the monarch but in Parliament.  Or to be more precise, in “the Queen-in-Parliament”, the technical term used for the persona of both Houses together acting with the sovereign.  The ultimate authority and supreme source of law is what both Houses decide and the monarch assents to (as she is bound to do). In the British constitution, therefore, the ultimate source of law is Acts of Parliament, and as a result, of the three branches of state power, the Legislature will always dominate the other two.

But anything the Executive does which is not an Act of Parliament is subject to judicial control.  This includes decisions by the Queen-in-Council (ie Privy Council) which are acts of the Executive not the Legislature.  And ever since at least the 17th century, acts of the Executive have indeed been subject to the oversight of the Courts.

This is neither therefore a new nor even a very controversial power;  other acts of the Executive that the Courts regularly oversee include for example the granting of pardons, and in general judicial review is used to ensure that those who have and exercise powers which affect people do so in a way that is not outside the limits of their power, not for improper or corrupt purposes and not irrational, that is in a way which no reasonable decision-maker could rationally think appropriate.

So we would conclude as our first observation that the Supreme Court was not “overruling the Queen” in some audacious and quasi-republican manner, but exercising the long-standing right of the Courts to ensure that the Executive operates within the law.

The second observation that many commentators have made is that the Supreme Court has given itself the right to overrule Parliament and take political decisions.  Some indeed have gone as far as to liken the Court’s ruling to the seminal ruling in US constitutional law of Marbury vs Madison, a case before the United States Supreme Court in 1803 in which the then Chief Justice John Marshall established the principle that American courts have the power to strike down laws, statutes, and some government actions that violate the US Constitution[2].

Again, we think this is to misunderstand what has happened.  The Supreme Court was very clear that it was adjudicating on an act of the Executive not of the Legislature.  There was no challenge to the general principle that Parliament is sovereign[3].

Of course in normal times the Executive controls the Legislature – that is, the government can make the House of Commons do its bidding.  So a government with a majority can usually ensure that what it wants to do is approved by Parliament, and the government’s wishes become acts of Parliament and so law.  And in that case the courts cannot block or overrule the government’s programme.

But – in case anyone had not noticed – these are not normal times, and so far from controlling the House, the prime minister has yet to win any votes in Parliament at all.  And the decision to prorogue Parliament was not an act of the Legislature, and so the Supreme Court was within its existing rights to address the matter.

We would conclude on this second point that the Supreme Court decision was not that surprising and does not herald a desire by judges to take or frustrate political decisions;  rather, it demonstrates a deep unease with politicians who deliberately tear up the rules and try to govern without Parliament.

The third observation many people have made is that even if the Court had not assumed wholly new and political powers, it was extending its remit dramatically.  But anyone who has been observing the development of the concept of judicial review over the last 40 years or so would conclude that even if this ruling itself broke (slightly) new grounds, the general direction of travel has been clear.

What one can perhaps say is that the separation of the Supreme Court from the House of Lords in October 2009 has increased the willingness of the Court to scrutinise the Executive.  Before October 2009 the senior court of the UK was the House of Lords.  But it was untidy to have the highest court in the land a committee of the legislature, and although the Supreme Court technically has no different powers, the change was designed to create the impression of a greater separation.  Hence the new name and move to new building, symbolically across the square from Parliament, not in Parliament.

On the other hand, while it is true that the change of name and physical move does seem to have encouraged the Court to be slightly more willing to exert itself, the old House of Lords was itself developing these principles long before the change of name and location.

So we would conclude on this third point that the Supreme Court’s ruling last week was part of an ongoing evolution, rather than an act of revolution.

Lastly, many commentators have started to worry that the UK is on its way to a politicised judiciary, with benches stacked by political parties with judges favourable to their viewpoint, confirmation hearings in the House of Commons and all the other trappings of the US system of justice and judicial rule.

We think the UK is a very long way from a US-style rule by the judiciary.  As we discussed above, the US Supreme Court can indeed strike down Acts of Congress on the ground they are unconstitutional;  in any state with a written constitution the senior Court has to police it, and depending on how it is written, that can naturally put compliance with the constitution above acts of the legislature.  Which is bound to be seen by the disappointed party in the legislature as a political act.  It is thus almost inevitable that the US Supreme
Court, having been given that role, at times politicises it.

But the UK Supreme Court cannot strike down Acts of Parliament, because in the UK system ultimate sovereignty rests with Parliament.  And that has not changed at all.  From this point of view we would argue that the UK is a long way from politicisation of the bench;  indeed nobody with any sensitivity to what is going on at the moment would think that the solution is to give politicians more say over who is appointed to the courts.

We have looked at four separate claims that the more excitable commentators have made about last week’s Supreme Court ruling.  And we conclude that while the ruling was certainly an unpleasant surprise for the government, it was not out of line with existing UK judicial practice, it has not changed the relationship between the Judiciary and the other two branches of the state, and it does not indicate the inauguration of Rule by the Judiciary.

Nor, alas, does it solve the problem of Brexit.  But that is another matter altogether.


[1]              I have had considerable help from a number of legal friends and contacts in the writing of this essay;  any remaining mistakes and misunderstanding of the law are however entirely my own.

[2]              The Court’s landmark decision in Marbury vs Madison established that the US Constitution is actual “law”, not just a statement of political principles and ideals, and in essence placed the Constitution above Acts of Congress.  As a result US courts have the power to deem an Act of Congress unconstitutional, and strike it down.  The ruling has helped define the boundary between the constitutionally separate legislative, executive and judicial branches of the American form of government.  See eg for more details.

[3]              There are a couple of exceptions to this.  First, under the European Communities Act 1972 (ECA), the UK is currently subject to EU law, and EU law obliges all the institutions of Member States (including national legislatures) to comply with EU law.  As a result, under the ECA, both the European Courts of Justice and the UK’s domestic courts can in fact declare Acts of Parliament contrary to EU law and to that extent invalid.  Second, the incorporation of the European Convention of Human Rights into UK law allows the Courts to consider whether acts of Parliament are compliant with the Convention.