Constitutional- Abi Cooper

The Myth of “Judicial Overreach”

By Abi Cooper

The capacity to hold the government to account is essential to the principle of democracy, yet the government continuously puts forward the idea that judicial scrutiny exceeds the court’s powers and undermines parliamentary sovereignty. Judicial overreach refers to the accusation that the courts overstep their constitutional sphere of influence, by engaging in areas that are “political” and should instead be resolved by political debate.

Advocates of judicial overreach argue that because of a “decline in politics”, an “empire of law” is stepping in to fill the space that politics once governed.106 The “empire” represents the supposed undemocratic and everexpanding nature of the courts. 107 Proponents of this view, such as Jonathan Sumption, argue that the courts exceed their sphere of influence by taking over “political issues” which should be left to Parliament to resolve.

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Whilst it is reasonable to suggest that “law’s empire” has expanded in recent years, with influential cases such as Privacy International and the Miller cases of 2016 and 2019, 109 the idea of judicial overreach suggests that the courts are infringing upon the separation of powers, by involving themselves in political debate, which is the role of Parliament and the executive. However, I would instead argue that because the boundary between politics and law is so often blurred and in some circumstances, intertwined, the judiciary does not overstep but rather answers the legal questions that political issues raise.

Politics and the Law

Judges only operate on matters of law. They answer the legal questions that political debate cannot, providing the legal expertise that is required to answer

106 J Sumption, Trials of the State: Law and the Decline of Politics (Profile Books, London 2019). 107 Ibid. 108 Ibid. 109 R (on the application of Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 : R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5 : R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41: J Sumption, Trials of the State: Law and the Decline of Politics (Profile Books, London 2019)

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the questions which have previously been unanswerable. However, as policy and law are so closely intertwined, issues that are brought to court often contain a political tint. 110 Defining the “political” and the “legal” as separate spheres and trying to put them in distinct categories is incredibly misleading. There is a clear crossover between the two, which can be seen in the 2016 Miller case.111 Some may argue this case is a clear example of judicial overreach: the courts answer and involve themselves in a political issue that should have been left to Parliament to decide. From a first read, this case asks a seemingly political question: can the Prime Minister take the UK out of the EU? However, upon a closer examination, a clear legal query is present: Can the executive bypass the legislature by leaving the EU?

Whilst Brexit is such a divisive and controversial issue in this case, the courts neither involved their political opinions nor engaged in political debate. They simply answered the legal question raised. Were they not to get involved, the UK’s constitution would have been left at risk, as the executive's decisions clearly undermined the separation of powers and parliamentary sovereignty. Without the court's oversight, Parliament would have been ignored by the Executive.

Furthermore, if the courts were to ignore issues which had political dimensions, we would risk complex legal problems being solved by those without any legal experience in Parliament, whilst also reducing the number of legal questions that could be solved by the judiciary and in turn weakening the supervisory function of the courts.

Alternatively, there are many examples where political issues that don’t require legal answers are brought to court and the courts respond accordingly, leaving the answer to be decided by political discourse. For instance, In R (Nicklinson) v. The Ministry of Justice, a majority of justices held that it would be inappropriate for a court to make a decision on the matter before giving Parliament the opportunity to consider their position.112 Lord Neuberger concluded: “[E]ven under our constitutional settlement, which acknowledges

110 TRS Allan, ‘Human Rights and Judicial Review: A Critique of “Due Deference” [2006] 65 (3) Cambridge Law Journal 671-695. 111 R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5. 112 R (on the application of Nicklinson and another) (AP) (Appellants) v Ministry of Justice (Respondent) [2014] UKSC 38.

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parliamentary supremacy, and has no written constitution, it is, in principle, open to a domestic court to consider whether section 2 infringes article 8”.113 Despite this, a majority felt that the question is one that Parliament is in a much better position than the courts to assess, emphasising how the courts are aware of the boundary between the political and the legal spheres, and respect Parliament's position as sovereign, to answer political questions. This is further evidenced by Lord Reed in a recent response to the Prime Minister’s proposals for a constitution commission to examine the role of judicial review where he states “Judges are very well aware of the risk of challenges being brought in what are political rather than legal grounds. They are repelling them and are careful to avoid straying into what are genuine political matters. When this is a matter that is to be considered it should not start from the premise that judges are eager to pronounce on political issues. The true position is actually quite the opposite”. 114

Therefore, judges can, and do, make the distinction between the cases that require a political answer that they are unable to give and those of which require a legal answer which it is within their scope of power to address.

The “Empire of the law”

Proponents of judicial overreach argue that the judiciary has unjustly expanded in recent years and are encroaching on political territory.115

Jonathan Sumption argues in the 2019 BBC Reith lectures that the expanding “empire of law” has enlarged to fill the void left by the “decline of politics”, ultimately undermining democracy.116 Under Sumption’s democratic model, Parliament is the necessary moderating arena.117 He argues that the governing party, given their power by the people, has its legislation legitimized through it being passed by Parliament who’s role is to “accommodate the divergent interests and opinions of citizens”.118 Arguing against the use of referenda and other

113R (on the application of Nicklinson and another) (AP) (Appellants) v Ministry of Justice (Respondent) [2014] UKSC 38 114 John Hyde, ‘Lord Reed denies judicial over-reach’ (The Law Society Gazette, 4 march 2004) <https://www.lawgazette.co.uk/law/lord-reed-denies-judicial-over-reach/5103324.article>

115 116

J Sumption, Trials of the State: Law and the Decline of Politics (Profile Books, London 2019) Ibid. 117 Nicholas Langen, ‘Jonathan Sumption’s Reith Lectures: are the courts too willing to trespass on the terrain of politics?’ (The Justice Gap, 5 June 2019) <https://www.thejusticegap.com/jonathan-sumptionsreith-lectures-are-the-courts-too-willing-to-trespass-on-terrain-of-politics/> 118 J Sumption, Trials of the State: Law and the Decline of Politics (Profile Books, London 2019).

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forms of direct democracy that reduce politics to “a zero-sum game”, and more in favour of political discourse that requires debate and compromise.

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In the 2019 Reith lectures, Sumption is arguably less concerned with political discourse and more concerned with the way in which he believes the courts have usurped the political. Declaring that the court’s trespassing on the political not only undermines the power of Parliament but as a result the power of the people, threatening democracy altogether.

Sumption’s argument is, however, facile and fails to consider how easy it is for the executive to go unchecked. Parliament has very few ways in which it can hold ministers to account for their decisions. Sumption fails to recognise the importance of parliamentary scrutiny and the role that the courts play in holding the government accountable. The use of first past the post in the UK has made it increasingly easy to get legislation passed with a significant majority and even easier for the government to evade scrutiny. In order to then prevent executive overreach, the courts must be able to intervene. In the 2016 and 2019 Miller cases, the courts did not offer a political opinion but rather scrutinised and provided a check on the executive’s power.120 Without the courts, Parliament can be very easily undermined by the power of the executive. Just because the executive has “strong public support” does not mean that the court’s decision to alter these policies undermines democracy.121 Sumption suggests that the courts have long represented an unattainable higher position in society that a majority of people cannot connect with.122 Nevertheless, Sumption clearly ignores all those who are left behind by the political majority.

Ultimately, it is hard to agree with Lord Sumption’s view of the everexpanding “empire of law” when the courts have done so much in recent years to curb the populist tendencies of an overly ambitious executive.123 Forcing the Executive to compromise and moderate when all other forms of scrutiny

119 Ibid. 120 R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5 ; R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41. 121 J Sumption, Trials of the State: Law and the Decline of Politics (Profile Books, London 2019). 122 Ibid. 123 Ibid.

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fail is not undemocratic but rather maintains and protects the UK’s constitution.

The Independent Review of Administrative Law

Recently the UK government has been determined to erode any form of scrutiny that could hold them to account. One of its latest being the Independent review of Administrative law (IRAL).124 The Independent Review of Administrative Law was established on the 31st of June 2020 to examine trends in Judicial review and to deliberate on any recommendations to reform.125 It was called after a pledge in the Conservative manifesto to put an end to the “abuse” of judicial review.126 The inquiry into judicial review is evidence of the Conservative government’s distaste for the separation of powers and the judiciary specifically. This was most likely sparked by the executive’s grievance when the courts overturned Prime Minister Boris Johnson’s decision to prorogue parliament in 2019. A decision that was widely contested and said to be an attempt to prevent Parliament from legislating a no-deal Brexit. The enquiry concluded that the courts do not overstep opting instead for small reforms to the process of judicial review, including changes to remedies. However, the government’s myopic view of judicial review is harmful. Judicial reviews are not only used to hold the government to account, but also to challenge decision-making and process by public bodies including local councils. It is the vulnerable people of everyday life that are affected most by these proposed reforms, not the high-level constitutional debates.127 Government scrutiny is essential to maintaining the public’s trust and confidence in decision making. The current government was elected with a significant majority and is therefore authorized to make any legislative

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The Independent Review of Administrative Law, 2021, CP 407 125 Ministry of Justice, ‘Judicial Review Reform’, 2021 <https://www.gov.uk/government/consultations/judicial-review-reform> 126 ‘Conservative Manifesto 2019| Conservatives’ (Conservatives.com, 2019) <https://www.conservatives.com/our-plan> 127 ‘The Judiciary Is Not The UK Government’s Enemy’ (ft.com, 2021) <https://www.ft.com/content/cfd9285d-7bab-4954-9b4b-0170963f0590>

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changes it sees fit, so if this is done in the right way why do they need to fear the scrutiny of the courts?

Conclusion

Judicial overreach would require the courts to act beyond their scope of power, but when the boundary between politics and law is so blurred and often intertwined, political issues are often brought to court. The judiciary is aware of the matters which require an answer from Parliament and those that require legal expertise. As a consequence, the notion of an “empire of law” encroaching on political territory is simply false. The government actions in enquiries about judicial review are largely a result of government losses in recent judicial review cases and the conclusions of these enquiries reflect the view that there is no need for dramatic change to the process of judicial review. Judicial review is essential to scrutinising and holding the government accountable; the process is inherent to maintaining the public’s trust. If the executive is acting within their scope of power and in accordance with the rule of law, why are they so threatened by the scrutiny of the judiciary?

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