ALBA Conference 2019: A Review (Part 5)

5 November 2019 by Conor Monighan

This post, along with those before it, summarises some of the main points of interest arising from the ALBA Conference 2019.

‘Reith Lecture (Judicial Power) Response’ – Chair: Mrs. Justice Thornton; Speakers: Lord Dyson, Sir Stephen Laws, Prof Vernon Bogdanor, Prof Meg Russell, Lord Falconer of Thoroton QC

A prestigious panel offered its response to Lord Sumption’s Reith Lectures, followed by a reply from Lord Sumption himself.

In his lectures for the BBC, Lord Sumption argued that judges have excessively increased their power and invaded into the political sphere. The Human Rights Act 1998 and Judicial Review attracted particular criticism.

Lord Sumption’s original lectures are available from the BBC here. A recording of the full discussion is available on LawPod here, so this post draws out some of the key points.

Lord Falconer of Thornton QC

Lord Falconer argued that judges have merely extended their power in ways which reflect the demands of the public. In his words, the courts have been there to “hold the executive to standards of decency, honesty, non-discrimination, and fulfilling expectations when they have created them”. Interestingly, he suggested that judges are uniquely placed to scrutinise government. This is because courts can investigate matters in detail in a way that politicians either cannot, or will not. In support of his argument, Lord Falconer pointed towards polling evidence which shows judges enjoy high levels of public support (particularly when compared to politicians).

Lord Falconer also suggested that it would be “disastrous” if Lord Sumption’s views were to gain currency. The argument that judges have trespassed into politics matters would, he suggested, be “an absolute gift to those who saw the courts as ‘Enemies of the People’”. In fact, courts are very good as dealing with majoritarianism (as seen in the Belmash case).

Sir Stephen Laws

Sir Laws submitted that Lord Sumption’s claims were overstated. He claimed that there is “no plausible risk of a majoritarian tendency in the UK”. Anyone concerned by such a prospect should not criticise judges. After all, he reasoned, the judiciary’s independence means it cannot rely on methods normally used to convince people of ideas, such as advocacy. Instead, judges have to rely on their inherent authority.

However, Sir Laws did agree that politicians must be accountable. This means that MPs should not be able to dodge difficult decisions by relying on rules created by judges. Sir Laws drew a comparison with Robert Peston’s suggestion that the Financial Crash was partly precipitated by regulation. Peston has suggested that financial institutions moved away from examining the credit worthiness of an individual to maximising profit within the law. Politicians, Sir Laws said, must not be able to act in a similar way in relation to judicial rules.

Given his previous position as the First Parliamentary Counsel, Sir Stephen Laws was well-placed to answer suggestions that it is time to create a written Constitution. As he put it, “it is, in practice, impossible to draft any process to produce an outcome of independence. I know, because I’ve been asked to do so on several occasions”.

Professor Russell

Professor Russell took a more legal-political perspective. She argued that there has been a decline in politics (as defined by Sir Bernard Rowland Crick, who saw the subject as a conversation).  As a result, it is fair to say that politicians have surrendered power, as opposed to judges taking it.

She suggested that the rise in polling is partly to blame. This is because polling data means politicians are wary of taking difficult decisions, not least because it highlights the level of opposition to particular policies. Professor Russell noted that there has been an increased trend of deferring to regulators. This situation, she suggested, needs to be resolved urgently. Evoking Sir Crick, she stated “tyranny is the next alternative [to politics], oligarchy the next”.

Professor Bogdanor

Professor Bogdanor identified a number of contradictions in Lord Sumption’s argument. For example, Lord Sumption states that he is against referendums, yet wants another to ‘correct’ the one held in 2016. Lord Sumption suggests that law has gone too far, but in answer to Baroness Helena Kennedy’s question stated that he was not against this trend, but was merely emphasising that it has occurred.

Professor Bogdanor also critiqued Lord Sumption’s argument that society should rely on Parliament to protect its rights. He suggested that the role of courts is to protect rights of minorities who are not in a position to protect themselves.

In response to the argument that the UK should withdraw from the European Convention on Human Rights, Professor Bogdanor posed the question of whether there is something special in our air, when compared to that of other signatory counties, which makes our leaders especially aware of the importance of Human Rights.

Lord Dyson

Lord Dyson submitted that the so-called ‘increase in judicial power’ should not be overstated. In response to concerns about the relaxation of irrationality as a ground of review, he pointed out that most judges are aware of the need for deference. After all, he reasoned, most judicial reviews succeed on procedural grounds rather than substantive ones.

His Lordship also took issue with the cases relied on by Lord Sumption in his lectures. Lord Dyson argued that the Charlie Gard case was not unusual, despite Lord Sumption’s claim that it demonstrated an increasing interference by judges with the liberty of citizens. He asked what body, if not the courts, could determine the best interest of a child. Lord Sumption also relied on the so-called ‘black spider memos’ case. But here, Lord Dyson pointed out, the Supreme Court was split. Hardly a good basis for arguing that the judiciary has excessively expanded its power.

In answer to Lord Sumption’s contention that the Human Rights Act is to blame for judicial overreach, Lord Dyson suggested that the approach taken by judges has been entirely unsurprising. Parliament was aware of the “living instrument approach” taken by the ECtHR when it passed the Act, meaning Lord Sumption cannot now complain when it is applied.

Most importantly, perhaps, Lord Dyson pointed out that Lord Sumption failed to identify any principle which could be used to show when judges have ‘gone too far’. He finished by noting that the current political climate means it is not a good time to take powers away from judges.

‘A Response to the Response’: Lord Sumption in conversation with Lord Justice Singh

Lord Sumption attacked two of the core principles of the ECHR. The first was the ‘living instrument’ doctrine.

Lord Sumption accepted Lord Dyon’s argument that Parliament knew (or should have known) about the ‘living instrument’ doctrine when it passed the Human Rights Act. However, Lord Sumption said that he disagreed fundamentally with exporting law to a body which is outside of the constitution and not open to the democratic process.

Whilst it is true that the ‘living instrument’ doctrine has helped produce some positive change, one ought to focus on the process of making law as well as the outcome. As Lord Sumption pointed out, an argument that the ‘ends justify the means’ has been made by virtually every autocratic society in history. In his assessment, the current process is lacking. He noted that although declarations of incompatibility under s.4 HRA 1998 are not technically binding as a matter of domestic law, as a matter of International Convention Law this description is entirely inaccurate.

The second concept critiqued by Lord Sumption was the ‘margin of appreciation’. Controversially, the former judge argued that the margin of appreciation should not be applied in a uniform way to every country. He suggested that an expansive margin of appreciation should be offered to countries such as the UK, whilst those that have only recently escape tyranny may require less discretion.

Lord Sumption also agreed that, in principle, there are some matters that should be beyond even the reach of an elected legislator. However, he suggested, this way of thinking has become the norm for most decision-making as matters are left to judges to decide.

Lord Sumption concluded by suggesting that judges are currently having it both ways. On the one hand, he said, they are making political decisions. On the other, however, judges are not open to a political process. In the US, he argued, a key consideration of voters is whether their vote will help put people of their political colour in the Supreme Court. The recent election of Brett Kavanaugh shows the dangers in opening judges to political selection. If this solution is to be rejected, judges must stop meddling in political matters.

***

This post merely reflects the author’s personal interpretation of what was said at the conference. The opinions expressed do not necessarily reflect the views of ALBA, conference attendees, or the UKHRB.

A number of papers from the conference are available here.

Related reading:

• ALBA Conference 2019: A Review (Part 3)
• ALBA Conference 2019 (Part 2)
• ALBA Conference 2019: A Review (Part 1)
• All Hale Parliament: Responding to the Reith Lectures

And listening:

• Law Pod Uk Episode 88 Lecture Series Part 1: A Response to Lord Sumption
• Law Pod UK Episode 89 Lecture Series Part 2: Lord Sumption’s response