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Courts, Legitimacy and the Rule of Law

Published online by Cambridge University Press:  16 October 2017

Shaheed Fatima QC
Shaheed Fatima QC*
Affiliation:
Barrister, Blackstone Chambers, London (United Kingdom); clerks@blackstonechambers.com.

Abstract

The role of courts as lawmakers has been scrutinised, partly because of the questions it raises regarding legitimacy. This scrutiny has sometimes assumed that courts are safe from legitimacy-based criticism in their role as appliers of law. However, recent events in the United Kingdom show that, regrettably, this is not so: the media reaction to the judgments in the Brexit case of Miller went far beyond criticism of the courts’ reasoning or conclusions. It was an attack on legitimacy. Insofar as such attacks arise out of misunderstandings about the nature of adjudication (including, for example, the existence and scope of judicial discretion), one way of countering them is for the legal community (scholars, judges, practitioners) to continue to increase public awareness about these issues. However, it is incumbent upon other parts of the state – the executive and the legislature – to respond promptly to such attacks in order to uphold the independence of the judiciary and the rule of law.

Keywords

legitimacyrule of lawBrexitMillerdiscretion

Information

Type
Celebrating 50 Years of Scholarship: Reflections on Key Articles from the First Five Decades
Information
Israel Law Review , Volume 50 , Issue 3 , November 2017 , pp. 389 - 445
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2017 

1. Introduction

In her article, ‘The Role of Courts in Rifted Democracies’ (1999), Ruth Gavison considered the role of courts in Israel in light of the ‘hyperbolic and dangerous attacks’ on the Supreme Court.Footnote 1 Her broader context was rifted democracies: ‘when societies crack and it becomes impossible to maintain the picture of harmony in the interests of all, and when there is deep conflict regarding decisions made by political authorities and the courts’.Footnote 2 In such societies, she said, courts should safeguard their independence and credibility by viewing themselves ‘primarily as appliers of law to specific cases, and as defenders of arrangements basically made in the political branches’, rather than as ‘full and equal participants in the elaboration and articulation of the values of their society’.Footnote 3 Gavison's stance was informed by her views on the position in Israel at that time and the ‘dilemma for those who want a strong and independent judiciary, believing it is essential for freedom and democracy, but who also believe that, during the last two decades, the courts have transgressed limits they should respect’.Footnote 4 She acknowledged, however, that the question of the role of courts in democracies does not have ‘“one right answer”, applicable to all societies at all times’.Footnote 5

In this article, I comment on the themes in Gavison's article from the perspective of a practitioner in English law,Footnote 6 and by considering the role of courts as appliers of law rather than the role of courts as lawmakers, on which Gavison focused. I begin by identifying the parts of Gavison's article with which I broadly agree and with an explanation for why I have chosen to consider the role of courts as appliers of law.

I agree with Gavison's general approach ‘that the question of the role of courts in democracies is not one of jurisprudence or an analysis of the concepts of “democracy” and “court”. It is a normative-political question, the answer to which depends on a number of assumptions, both empirical and normative’.Footnote 7 I also agree with parts of Gavison's general analysis – for example, that courts ‘must make law some of the time’Footnote 8 – but, if I were to address this role in detail, I would wish to do so by considering the limitations on that lawmaking role. I agree that courts should stick to their primary function of resolving disputes by applying the law because ‘[t]he wider a court strays from this primary function, the more vulnerable the court becomes to attacks against its legitimacy’.Footnote 9 I also agree that, in order to strengthen their legitimacy as the authoritative arbiters of disputes in society, courts should engage only in ‘creative interpretation … where necessary’, for example, where they have the ‘power and responsibility to adapt laws to the public's changing needs’.Footnote 10

Against that background, I have chosen to consider the role of courts as ‘appliers of law’ in more detail, in light of the recent reaction in the UK to the Brexit case, R (Miller) v Secretary of State for Exiting the European Union.Footnote 11 Gavison's article considers that role but she focuses on the role of judges as lawmakers. That familiar debate has many strands. It gives rise to questions such as: Should judges make law? If so, when and with what constraints? What are the consequences of judicial lawmaking, for example, on the relationships between courts, the executive and the legislature? These questions have been considered by judges, scholars and practitioners in different legal systems at different times. This is no doubt because, as Gavison notes, the question of the role of courts in democracies ‘is not a question with “one right answer”, applicable to all societies at all times. Societies differ greatly in many respects and solutions should be sensitive to the unique features and circumstances of the society under review’.Footnote 12 One theme of this debate – and the focus of Gavison's analysis – is whether judicial lawmaking undermines the legitimacy of courts. That is an important question but our (justified) fascination with judges as lawmakers should not lead us to neglect consideration of the role of courts as ‘appliers of law’. In Gavison's view, as I have noted above, ‘[t]he wider a court strays from this primary function, the more vulnerable the court becomes to attacks against its legitimacy’. The implication is that courts are, or should be, safe from attacks on their legitimacy when they decide disputes by applying the law rather than making it. However, while that should be so, it is, regrettably, not so.

Recent events in the United States and England demonstrate that even when courts are doing their (uncontroversial) job of applying the law, they may still be criticised and attacked as a result of their (controversial) decisions. That criticism undermines the rule of law when it targets the legitimacy of courts. That is the issue I consider in this article. In doing so I refer to ‘legitimacy’ as shorthand, encompassing a range of attributes such as independence, impartiality and credibility, and I use Miller as an illustration both of what can happen and of what could be done to try and address such attacks.

In summary, I conclude as follows. First, I agree with Gavison that courts may safeguard and improve their legitimacy by explaining that their primary function is as appliers of law and by acting consistently with that function. This means that judges should (continue to) speak publicly, insofar as they are able, about their constitutional role and the adjudication process, and others (such as legal scholars and practitioners) should contribute to increasing greater public awareness of such matters. In particular, judicial discretion should be further explained since the existence and scope of such discretion may be used to impugn the legitimacy of courts. However, secondly, although this awareness may safeguard the legitimacy of courts on a general level, it will not prevent criticism of courts in specific cases where, for example, the outcome of a decision is controversial or regarded as wrong. Indeed, greater public awareness may increase the extent to which judgments, and judges, are criticised. Thirdly, although such criticism is a necessary and important part of life in a democratic society which values freedom of expression, when the criticism goes beyond criticism of the court's reasoning and its conclusions and attacks the legitimacy of courts, then it should be met with a prompt and robust response from, at least, the other branches of the state. This is because such criticism, left unchecked and unanswered, undermines not just the legitimacy of a particular judge or court but also the independence of the judiciary and the rule of law. In a democratic state, it is in the public interest that these values are protected and upheld by the executive and the legislature. It goes without saying that the executive itself should not make such attacks on the legitimacy of courts, the independence of the judiciary and the rule of law.

I develop the first point in Section 2 and the second and third points in Section 3.

2. The Role of Courts in General and as ‘Appliers of Law’ in Particular

I begin this section with two preliminary observations.

First, the role of a court is to decide whether it has the jurisdiction and competence to decide the dispute before it and, where it does, to do so. The way in which courts discharge that role defies generic description. That is because the court's approach will vary from case to case; it may, for example, involve a variety of kinds and degrees of engagement with the law, from different sources. The way in which the court applies the law will be shaped and coloured by the context of the case in question: in some cases the court may have to make or develop or clarify the law before applying it. In other cases, the law may be clear but needs to be applied to difficult or novel facts.

Furthermore, the court's approach and its application of the law may require engagement with social values. Once again, the context of the case will determine the extent (if any) to which the court may need to engage in the elaboration and articulation of such values. A court may resolve a case by the application of clear codified law or indistinguishable precedent, without needing to consider the underlying social values. The resolution of a case may involve modest interpretation of codified law or incremental development of case law, which takes some account of social values (for example, questions of textual interpretation – whether they stem from statutory provisions, contractual clauses, or case law – often require courts to balance competing considerations and this balancing exercise may require discretionary value judgments on a range of social and other matters). A court may resolve a case, where social values are at the centre of its analysis, by reference to a more dramatic adjudicative process. One such example is where it is required to interpret legislation compatibly with human rights. Section 3(1) of the Human Rights Act 1998 provides: ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the [rights in the European Convention on Human Rights contained in Schedule 1]’. This may require the court to balance competing human rights (and, therefore, competing social values, such as freedom of expression against the right to privacy) and to embark on a process of creative statutory interpretation.Footnote 13

Regardless of whether the context is a rifted democracy or not, I would not accept (if that is Gavison's contention, which is not clear) that the self-perception of courts is, or should be, limited to a binary choice whereby ‘[t]hey can view themselves primarily as appliers of law to specific cases, and as defenders of arrangements basically made in the political branches; or they can view themselves as full and equal participants in the elaboration and articulation of the values of their society’.Footnote 14 The nature of adjudication should – and, I would suggest, in England, does – defy such binary classification. This complex nature of the adjudication process is a point of some significance because it is likely to explain, at least in part, why the role of courts and the nature of adjudication are less well understood than they should be. This is linked to my second preliminary observation, to which I turn next.

Secondly, Gavison encourages courts to see themselves as ‘primarily appliers of law’ because she regards this as being the role that will safeguard their legitimacy. I agree, but I would add that this also means that the public need to have a greater understanding of what courts do and how they do it. As noted above, this requires judges to speak publicly, insofar as they are able, about their role and the adjudication processFootnote 15 and other members of the legal profession to contribute to increasing public awareness of these issues. In particular, the existence and scope of judicial discretion should be demystified and explained because it may be used to impugn the legitimacy of the courts.

Demystifying discretion requires, at the very least, the explanation that even the simplest cases involve the application of law to facts in order to arrive at a decision; that such an application of law often involves an exercise of judicial discretion, but that the nature and scope of discretion will vary from case to case. It would also involve explaining that such discretion is a fundamental component of the administration of justice and does not diminish the legitimacy of the courts. That is because discretion is typically exercised within constitutional and legal constraints,Footnote 16 and a judge's exercise of discretion may be susceptible to being challenged on appeal. There are likely to be two minimum layers of applicable constraint in most cases: a constitutional framework (regarding the constitutional role of courts, including their relationship with the legislature and the executive) and a substantive framework (regarding the question of law raised by the specific case).

These propositions regarding the nature of discretion are illustrated by Miller. The case involved a question of statutory interpretationFootnote 17 of the European Communities Act 1972 (ECA).Footnote 18 As seen in Section 3 below, Miller raised a justiciable question of statutory interpretation. Indeed, this was common ground between the parties, as noted by the Divisional Court and agreed by both the majority and minority justices in the Supreme Court. The interpretative exercise required the balancing of competing constitutional principles and a consideration of the role of Parliamentary accountability.Footnote 19 The claim was issued after the result of the referendum on leaving the European Union in June 2016. The Divisional Court and then the Supreme Court had to consider what steps were required, as a matter of UK domestic law, before the process of leaving the EU could be initiated. They considered whether a formal notice of withdrawal could lawfully be given by ministers without prior legislation passed in Parliament. Both Courts concluded that prior legislation was necessary, the Supreme Court by a majority of 8:3.

The two constitutional law principles considered by the Courts were as follows: first, the principle that the conduct of the UK's foreign relations, including treaty making, is part of the executive's prerogative power; and, secondly, the principle that, unless permitted by primary legislation, the prerogative power does not enable ministers to change statute law or common law. The application of these principles to the interpretation of the ECA pulled in different directions: the Secretary of State relied on the former;Footnote 20 the claimants on the latter.Footnote 21 The answer to the question of interpretation therefore turned, to a significant degree, on judicial discretion regarding the relative weight that should be given to these principles.

The majority of the Supreme Court favoured the claimants’ approach:Footnote 22

Accordingly, the main difficulty with the Secretary of State's argument is that it does not answer the objection based on the constitutional implications of withdrawal from the EU. … A complete withdrawal represents a change which is different not just in degree but in kind from the abrogation of particular rights, duties or rules derived from EU law. It will constitute as significant a constitutional change as that which occurred when EU law was first incorporated in domestic law by the 1972 Act. And, if Notice is given, this change will occur irrespective of whether Parliament repeals the 1972 Act. It would be inconsistent with long-standing and fundamental principle for such a far-reaching change to the UK constitutional arrangements to be brought about by ministerial decision or ministerial action alone. All the more so when the source in question was brought into existence by Parliament through primary legislation, which gave that source overriding supremacy in the hierarchy of domestic law sources.

The Supreme Court majority therefore emphasised the ‘unprecedented’Footnote 23 constitutional effect of the ECA and, because of this characterisation, gave greater analytical weight to the second principle that the executive's treaty-making (and withdrawing) power cannot alter domestic law. This led to their conclusion that legislation was needed before a formal notice of withdrawal from the EU could be given by ministers.

The dissenting Supreme Court judges, on the other hand, focused on the first principle, that the conduct of the UK's foreign relations falls within the executive's prerogative power, and concluded that there were no restrictions on that power in the ECA or other relevant statutes. Lord Reed relied on the phrase ‘from time to time’ in section 2(1) ‘since it demonstrates that Parliament has recognised that rights given effect under the 1972 Act may be added to, altered or revoked without the necessity of a further Act of Parliament’.Footnote 24

He also commented:Footnote 25

[I]t is a basic principle of our constitution that the conduct of foreign relations, including the ratification of treaties, falls within the prerogative powers of the Crown. That principle is so fundamental that it can only be overridden by express provision or necessary implication, as is accepted in the majority judgment at para 48. No such express provision exists in the 1972 Act. Nor do its provisions override that principle as a matter of necessary implication.

Lord Reed also commented on the significance of the role of Parliament:Footnote 26

Courts should not overlook the constitutional importance of ministerial accountability to Parliament. Ministerial decisions in the exercise of prerogative powers, of greater importance than leaving the EU, have been taken without the possibility of judicial control: examples include the declarations of war in 1914 and 1939. For a court to proceed on the basis that if a prerogative power is capable of being exercised arbitrarily or perversely, it must necessarily be subject to judicial control, is to base legal doctrine on an assumption which is foreign to our constitutional traditions. It is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary.

Miller therefore illustrates the way in which judicial discretion is exercised within a normative framework. In that case the judicial discretion – regarding the interpretation of the ECA – was exercised within the framework of principles of statutory construction and principles of constitutional law. The Supreme Court's analysis considered the text of the relevant statutory provisions, their rationale and precedent, as well as general principles of constitutional law. Such sources and principles provide the tools and the means for debating the merits and criticising the analysis and conclusions of such judgments. They enable objective assessment of whether, in Miller, the Courts exercised their discretion legitimately (i.e. on an issue that was justiciable and, within their institutional competence, constitutionally defined) and satisfactorily (i.e. on the merits of the interpretative question). Other examples of judicial discretion could be given to make the same point. The basic point is that what may appear, especially to a layperson, to be fluid and broad discretion is generally constrained by the applicable constitutional and legal framework and may be objectively assessed. As Cardozo J remarked about judges, ‘even when he is free, [he] is not wholly free … He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness’.Footnote 27

The existence of the constitutional and legal framework, therefore, should provide reassurance regarding the circumstances and manner in which judicial discretion may be exercised; it should assist in explaining the process of adjudication and it should contribute to strengthening the legitimacy of courts.

3. ‘Appliers of Law’ and Criticism in Specific Cases

Miller also illustrates the proposition that while courts may improve their legitimacy on a general level by explaining that they decide cases by applying the law and by doing so, this (portrayal and reality) is unlikely to prevent criticism in specific cases when, for example, the outcome of the decision is controversial or regarded as wrong. Indeed, it may be that the more transparent judges are about what they do and why they do it, the more vulnerable they, and their judgments, will be to scrutiny and attack. However, that is an inevitable consequence of open justice and free speech.Footnote 28

Early in its judgment in Miller the Divisional Court explained the justiciable nature of the question before it:Footnote 29

It is agreed on all sides that this is a justiciable question which it is for the courts to decide. It deserves emphasis at the outset that the court in these proceedings is only dealing with a pure question of law. Nothing we say has any bearing on the question of the merits or demerits of a withdrawal by the United Kingdom from the European Union; nor does it have any bearing on government policy, because government policy is not law.

The Divisional Court went on to interpret the ECA and concluded that ‘it is clear that Parliament intended to legislate by that Act so as to introduce EU law into domestic law … in such a way that this could not be undone by exercise of Crown prerogative power’.Footnote 30 After the Divisional Court gave judgment, its analysis and conclusion were scrutinised. Such criticism is a necessary and important part of life in a democratic society which values freedom of speech. However, the criticism went much further. The front page of The Daily Mail carried photographs of the three judges – Lord Thomas (the Lord Chief Justice), Sir Terence Etherton and Lord Justice Sales – with the headline ‘Enemies of the People’.Footnote 31 The Daily Express headlines included ‘Brexit: EU ruling on Article 50 is “an affront to British people”’Footnote 32 and ‘Three judges yesterday blocked Brexit. Now your country really does need you …We must get out of the EU’.Footnote 33 The Daily Telegraph headline was ‘The judges versus the people’,Footnote 34 while The Sun ran with ‘Judges’ Brexit Blow. Who do EU think you are?’Footnote 35 The content of some of the articles included personal information about the judges: one described Sir Terence Etherton as ‘the first openly gay judge to be made a Lord Justice of Appeal’ and explained that ‘Sir Philip Sales charged taxpayers £3.3 million in six years during his tenure as [the government's senior barrister]’.Footnote 36

So, even though the Divisional Court judges had clearly identified the limited legal question they were addressing and their role – essentially as ‘appliers of law’ – they were still subjected to inappropriate and ad hominem criticism and abuse. This wrongly treated the judges as personally responsible for the political consequences of their legal analysis and conclusions and, in some cases, it implied a lack of independence and impartiality. This abuse should have been promptly and robustly parried by the other branches of the state and, in particular, by the executive because such criticism, left unchecked and unanswered, undermines not just the legitimacy of a particular judge or court but also the independence of the judiciary and the rule of law. In a democratic state, it is in the public interest that these values are protected and upheld by the executive and the legislature. A paradigm example of this is President Mandela's reaction to an adverse judgment, when he remarked that ‘the judgment of the Constitutional Court confirms that our democracy is taking firm root and that nobody is above the law. This is something of which we should be proud and which the whole of our country must welcome’.Footnote 37 Of course, it goes without saying that the executive itself should not make such attacks on the legitimacy of courts and the rule of law.Footnote 38 Contrast this approach with President Trump's tweets in February 2017 in which he said that Judge James Robart, a federal judge in Seattle, was a ‘so-called judge’;Footnote 39 his decision, imposing a temporary block on an immigration ban, was ‘ridiculous’ and ‘terrible’ and that ‘[i]f something happens blame him and the court system’.Footnote 40

Unfortunately, the English executive made no such parry in response to the attacks on the Divisional Court. This is even though the Lord Chancellor/Justice Secretary has a constitutional duty to protect the independence of the judiciaryFootnote 41 – a duty described by Lord Irvine, when he was Lord Chancellor, in the following terms: ‘There is no higher duty of the office I occupy than to ensure from within Government that judicial independence is both respected and maintained absolutely’.Footnote 42 Indeed, it took a resolution from the Bar Council, the representative body of all barristers in England and Wales, before the Lord Chancellor, Liz Truss, said anything at all. The Bar Council resolution called on her to condemn the attacks:Footnote 43

The Bar Council of England and Wales condemns the serious and unjustified attacks on the judiciary arising out of the Article 50 litigation. It regrets the lack of public statement by the Lord Chancellor condemning these attacks and calls upon the Lord Chancellor to do so as a matter of urgency. A strong independent judiciary is essential to a functioning democracy and to upholding the rule of law.

It was only after this resolution that the Lord Chancellor made a statement.Footnote 44 On this point she said: ‘The independence of the judiciary is the foundation upon which our rule of law is built and our judiciary is rightly respected the world over for its independence and impartiality’.Footnote 45 This was described by Shadow Justice Secretary Richard Burgon as being ‘too little, much too late’,Footnote 46 while the Bar Council Chairman commented:Footnote 47

We would wish her to go further. The resolution passed by the Bar Council called upon her to condemn the attacks on the judiciary and that is what we are looking for. It is that which is so potentially damaging to the justice system in this country. As Lord Chancellor, it falls within her role to uphold the rule of law.

After the Supreme Court judgment, the Lord Chancellor was quicker to issue a statement (see below) and in March 2017 she encouraged judges to ‘speak out about the important work they do to ensure that it is widely understood’.Footnote 48 Later that month, the Lord Chancellor and the Lord Chief Justice, Lord Thomas, gave evidence before the House of Lords Constitution Select Committee. Lord Thomas was asked about the media attacks following the Divisional Court's judgment in Miller:Footnote 49

Lord Brennan: … Before us a week or so ago, [the Lord Chancellor] said, “I might respectfully disagree with some who have asked me to condemn what the press are writing”, stating that she “draws the line in saying what is acceptable for the press to print or not”, and she thought that the best way to proceed was to make the positive case. In the light of the constitutional requirements and those answers, how and by whom, in your view and that of the judiciary, should this independence be protected?

Lord Thomas of Cwmgiedd: … I believe that the Lord Chancellor is completely and utterly wrong in her view. …

… If you have got something wrong, fine, but there is a difference between criticism and abuse, which I do not think is understood.

It is not understood either how absolutely essential it is that we are protected, because we have to act, as our oath requires us, without fear or favour, affection or ill will. …

It cannot be right for us to have entered into a discussion at that time. How could I? I had made the judgment. Lord Neuberger could not say anything as he was going to hear the appeal, so there was nothing a judge could do. …

In short, it is the Lord Chancellor’s duty …

I understand what the pressures were in November, but she has taken a position that is constitutionally absolutely wrong.

In response to the Lord Chancellor's suggestion that judges should speak out more about their work Lord Thomas said that they give ‘a huge amount of explanation’, but that this had to be in general terms and they could not go into ‘areas of controversy’.

Lord Thomas’ criticisms of the Lord Chancellor were later echoed by the President of the Supreme Court, Lord Neuberger, when he appeared before the same Committee. He said that the response of some newspapers to the Divisional Court's judgment had been ‘quite inappropriate’ and that the judiciary ‘felt attacked personally’. He was then asked about Lord Thomas’ evidence and, in particular, about his description of the Lord Chancellor's position as ‘constitutionally absolutely wrong’. He replied:Footnote 50

The Lord Chancellor has a particular duty to speak up when the Lord Chief Justice and the President of the Supreme Court are hampered by the fact that they have been or are to be involved in the case and therefore cannot speak up.

It is not an issue of freedom of expression. … surely freedom of expression entitles the Lord Chancellor to correct and criticise what [the press] say, … Therefore I agree with what the Lord Chief Justice said. …

Although the reporting was most extreme in the aftermath of the Divisional Court judgment, the coverage in the run-up to the Supreme Court hearing was also personal. Before the case was heard by the Supreme Court in December 2016, The Daily Mail ran an article giving each of the eleven judges a ‘Europhile’ rating, with the headline ‘The judges and the people: Next week, 11 unaccountable individuals will consider a case that could thwart the will of the majority on Brexit. The Mail makes no apology for revealing their views – and many have links with Europe’.Footnote 51 After judgment was given, the Lord Chancellor promptly issued a statement which described ‘our independent judiciary’ as being ‘the cornerstone of the rule of law’,Footnote 52 but the media criticism continued: ‘Yet again the elite show their contempt for Brexit voters!’Footnote 53 Once again this was even though, like the Divisional Court, the majority judgment of the Supreme Court emphasised the limited role of the court:Footnote 54

It is worth emphasising that nobody has suggested that this is an inappropriate issue for the courts to determine. It is also worth emphasising that this case has nothing to do with issues such as the wisdom of the decision to withdraw from the EU, the terms of withdrawal, the timetable or arrangements for withdrawal or the details of any future relationship with the EU. Those are all political issues which are matters for ministers and Parliament to resolve. They are not issues which are appropriate for resolution by judges, whose duty is to decide issues of law which are brought before them by individuals/entities exercising their right of access to courts in a democratic society.

The dissenting Supreme Court judges also referred to the limited role of the Court:Footnote 55

The principal question in this case is not whether the UK ought or ought not to leave the EU. That is a matter for political judgment, which is where the referendum comes in. Courts do not make political judgments. The question in this is not whether, but how, the UK may lawfully set about leaving the EU, if that is the political decision made. It is about the legal mechanics of leaving.

It was not just the judges who were criticised: the lead claimant, Gina Miller, received death threats after the Divisional Court judgment.Footnote 56 Like the adverse media commentary on the judges, these attacks were also an attack on the rule of law because, as the Supreme Court majority observed, she was simply exercising her right of access to courts in a democratic society.

4. Conclusion

Of course, Miller was an extreme case because it arose from a hugely divisive political issue on which there had been a public vote, rather than an issue on which there was more abstract ‘deep conflict’ of the kind that Gavison considers. But Miller shows that even when courts expressly explain the limited nature of the legal questions before them, explain their limited role as ‘appliers of law’, and act within the confines of that uncontroversial role they may, nevertheless, be susceptible to criticism which goes far beyond their analysis or conclusions, and seeks to undermine their legitimacy. In such situations it falls, in particular, to the other branches of state to comprehensively and swiftly defend the legitimacy of the courts. That should be so regardless of whether there is a specific statutory obligation on a particular member of the executive to that effect because such criticism undermines not just the legitimacy of a particular judge or court but also the independence of the judiciary and the rule of law. In a democratic state, it is in the public interest that these values are upheld by the executive and the legislature. They should also be upheld by others and, in particular, the legal community, who can contribute in other ways to strengthening the legitimacy of the judiciary and the rule of law: judges, legal scholars and practitioners can, and should, increase public awareness regarding the nature of adjudication, the role of courts and the existence and scope of judicial discretion. The greater public awareness may increase the extent to which judgments, and judges, are criticised but a better informed public and media should make media reporting such as emerged post-Miller less likely.

References

1 Gavison, Ruth, ‘The Role of Courts in Rifted Democracies’ (1999) 33 Israel Law Review 216 CrossRefGoogle Scholar.

2 ibid 246.

3 ibid 256.

4 ibid 216.

5 ibid 218.

6 Although our choice of jurisdictions is different, my analysis, like Gavison's, focuses on the role of domestic courts. Another way of approaching the themes underlying Gavison's analysis and, in particular, the issue of how courts may secure their legitimacy, would be to consider the role of supranational courts. For example, the Grand Chamber of the European Court of Human Rights (ECtHR) has issued a number of significant and far-reaching judgments, which include ECtHR, Al-Skeini and Others v United Kingdom, App no 55721/07, 7 July 2011 (scope and application of art 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ((entered into force 3 September 1953) 213 UNTS 221) (ECHR) to the UK's extraterritorial military intervention in Iraq) and ECtHR, Hassan v United Kingdom, App no 29750/09, 16 September 2014 (interaction between art 5 ECHR and international humanitarian law in an international armed conflict). These judgments illustrate the breadth of the role of ‘appliers of law’ in a human rights context and give rise to questions regarding the proper role and competence of the ECtHR.

7 Gavison (n 1) 218.

8 ibid 229. The lawmaking aspect of the judicial role has been recognised by a number of senior English judges, writing extracurially. See, for example, (1) Reid, Lord, ‘The Judge as Law Maker’ (1972) 12 Journal of the Society of Public Teachers of Law (New Series) 22, 22Google Scholar: ‘There was a time when it was thought almost indecent to suggest that judges make law – they only declare it. Those with a taste for fairy tales seem to have thought that in some Aladdin's cave there is hidden the Common Law in all its splendour and that on a judge's appointment there descends on him knowledge of the magic words Open Sesame. Bad decisions are given when the judge has muddled the pass word and the wrong door opens. But we do not believe in fairy tales any more. So we must accept the fact that for better or worse judges do make law’; (2) Bingham, Lord, The Rule of Law (Penguin Books 2010) 45 Google Scholar: ‘The judges do have a role in developing the law, and the common law has grown up as a result of their doing just this. But, and this is the all-important condition, there are limits’; and (3) Lord Neuberger, ‘“Judge Not, that Ye Be Not Judged”: Judging Judicial Decision-Making’, FA Mann Lecture 2015, 29 January 2015, para 42, https://www.supremecourt.uk/docs/speech-150129.pdf: ‘A Judge is often called upon to make new law, whether by developing existing principles to address novel situations or lacunae, by interpreting and reinterpreting legislation and statutory instruments, or, more controversially, by revisiting established principles in light of social change’.

9 Gavison (n 1) 235.

10 ibid.

11 R (on the application of Miller and Another) v Secretary of State for Exiting the European Union [2017] UKSC 5; [2017] 2 WLR 583.

12 Gavison (n 1) 218.

13 Lord Neuberger summarised the effects of the Human Rights Act 1998 (UK) in his FA Mann Lecture (n 8) para 47: ‘The revolutionary effect of the 1998 Act is, in summary terms, threefold. First, Judges are now called upon more frequently to rule on moral and political issues, given that is what human rights involve. This means that we have to engage on a review of the merits of any decision or action which impinges on an individual's fundamental rights. Before the 1998 Act, our role in relation to government acts was more circumscribed. Secondly, Judges must perform a quasi-statute-writing function as section 3 of the 1998 Act requires Judges to read and give effect to legislation “[s]o far as it is possible to do so … in a way which is compatible with the Convention rights”. If legislation does not appear to comply, we must, if we can, recast it so that it does comply. Thirdly, under section 4 of that Act, Judges must tell Parliament when legislation cannot be made to comply and, with one exception (prisoners’ votes), it has done so’.

14 Gavison (n 1) 256.

15 See, Lord Neuberger (n 8) paras 20–21, in which he observed: ‘Judges are generally ready to explain what they do and why they do it, and quite rightly so. That is due to a number of factors. I would suggest they include (i) the modern awareness of the need for open justice, (ii) the increased role of the judiciary in determining questions of public policy, (iii) the growth in public communication generally, and (iv) changes in social and political discourse. … The increase in judicial openness is right and proper, but it leads to a concomitant increase in the risk of inappropriate attacks on Judges. Public criticisms of Judges and judicial decisions are an inevitable consequence of open justice, and they are an essential ingredient of an open society and free speech’.

16 See Lord Bingham (n 8) 51–54, which includes examples of judicial exercises of discretion; and ‘The job of the judge is to apply the law, not to indulge their personal preferences. There are areas in which they are required to exercise a discretion, but such discretions are much more closely constrained than is always acknowledged’; and ‘The rule of law does not require that official or judicial decision-makers should be deprived of all discretion, but it does require that no discretion should be unconstrained so as to be potentially arbitrary. No discretion may be legally unfettered’ (54).

17 Another recent illustration of the extent to which a prima facie question of interpretation can involve judicial discretion is Serdar Mohammed v Ministry of Defence [2017] UKSC 2; [2017] 2 WLR 327, an action for damages against the UK government alleging unlawful detention contrary to art 5 ECHR. One of the key issues for the Supreme Court was whether there was a power to detain in the relevant UN Security Council Resolutions (UNSCR) that applied in Iraq and Afghanistan. The majority held that there was such a power. Unlike Lord Reed's dissenting judgment, the majority judgments did not dwell on the Strasbourg case law on the construction of UNSCR (eg ECtHR, Al-Jedda v United Kingdom, App no 27021/08, 7 July 2011; ECtHR, Nada v Switzerland, App no 10593/08, 12 September 2012; ECtHR, Al-Dulimi and Motana Management v Switzerland, App no 5809/08, 21 June 2016) and the resulting proposition that UNSCR must contain clear and specific language if the Security Council intends that states take measures that conflict with their obligations under international human rights law. Instead, the majority, exercising their interpretative discretion, reasoned that the UNSCR had to have a uniform, global meaning because of the international nature of the peacekeeping operations. They said that the UNSCR could not, therefore, be construed by reference to a national or regional code of human rights protection such as the ECHR and pointed out that art 5 ECHR is unique in containing an exhaustive list of permitted grounds of detention, cf art 9 of the International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171. They also relied on the fact that there is nothing in general international human rights law that precludes detention where necessary on imperative grounds of security.

18 The two key provisions requiring interpretation were ss 2(1) and 1(2). s 2(1) provides: ‘All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly’. s 1(2) defines the expression ‘the Treaties’ as including the pre-accession treaties (described in Pt 1 of Sch 1 ECA), other treaties listed in s 1(2) and ‘any other treaty entered into by the EU … with or without any of the member states, or entered into, as a treaty ancillary to any of the Treaties, by the United Kingdom’. The Courts also considered art 50 of the EU Treaty which provides: ‘1. Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements. 2. A member state which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that state, setting out the arrangements for its withdrawal … 3. The Treaties shall cease to apply to the state in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the member state concerned, unanimously decides to extend this period’.

19 The dissenting judges referred to this: see eg Miller (n 11) Lord Carnwath [249]: ‘No less fundamental to our constitution is the principle of Parliamentary accountability. The Executive is accountable to Parliament for its exercise of the prerogative, including its actions in international law’.

20 The Secretary of State submitted: ‘[T]he fact that significant legal changes will follow from withdrawing from the EU Treaties does not prevent the giving of Notice, because the prerogative power to withdraw from treaties was not excluded by the terms of the 1972 Act … More particularly, [the Secretary of State] contended that the 1972 Act gave effect to EU law only insofar as the EU Treaties required it, and that that effect was therefore contingent upon the United Kingdom remaining a party to those treaties. Accordingly, he said, the 1972 Act Parliament had effectively stipulated that, or had sanctioned the result whereby EU law should cease to have domestic effect in the event that ministers decide to withdraw from the EU Treaties’: Miller (n 11) [37].

21 The claimants submitted: ‘[W]hen Notice is given, the United Kingdom will have embarked on an irreversible course that will lead to much of EU law ceasing to have effect in the United Kingdom, whether or not Parliament repeals the 1972 Act. … In particular … some of the legal rights which the applicants enjoy under EU law will come to an end. This … means that the giving of Notice would pre-empt the decision of Parliament on the Great Repeal Bill. It would be tantamount to altering the law by ministerial action, or executive decision, without prior legislation, and that would not be in accordance with our law’: ibid [36].

22 ibid [81] (emphasis added).

23 ibid [60].

24 Lord Reed, ibid [187], and see also [217].

25 Lord Reed, ibid [194].

26 Lord Reed, ibid [240]. See also Lord Carnwath, ibid [249] and [274].

27 Cardozo, Benjamin N, The Nature of the Judicial Process (Yale University Press 1921) 141 Google Scholar.

28 Lord Neuberger (n 8) para 21.

29 R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin), [5] (emphasis added).

30 ibid [92].

31 James Slack, ‘Enemies of the People’, MailOnline, 3 November 2016, http://www.dailymail.co.uk/news/article-3903436/Enemies-people-Fury-touch-judges-defied-17-4m-Brexit-voters-trigger-constitutional-crisis.html. See also Claire Phipps, ‘British Newspapers React to Judges’ Brexit Ruling: “Enemies of the People”’, The Guardian, 4 November 2016, https://www.theguardian.com/politics/2016/nov/04/enemies-of-the-people-british-newspapers-react-judges-brexit-ruling.

32 Macer Hall, ‘Brexit: EU Ruling on Article 50 is “an Affront to British People”’, Express, 3 November 2016, http://www.express.co.uk/news/politics/728591/Brexit-EU-ruling-Article-50-affront-British-people-High-Court.

33 Cited in Phipps (n 31).

34 ibid.

35 ibid.

36 Slack (n 31).

37 Executive Council of the Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA877 (CC), 1995 (10) BCLR 1289. The quote appears in Mark Kende, ‘President Nelson Mandela's Constitutional Law Legacy’, http://www.law.drake.edu/clinicsCenters/conLaw/docs/recentMaterials-mandelaLegacy.pdf.

38 Lord Neuberger (n 8) para 21: ‘the judiciary is the weakest branch of the state (having “no influence over either the sword or the purse… [and] neither FORCE nor WILL, but merely judgment”, as Alexander Hamilton put it [in Federalist Paper No 78, 28 May 1788]) and Judges cannot and should not be expected to defend their judgments, once they are delivered. Accordingly, attacks by ministers and MPs on the judiciary generally and on individual Judges in particular, are constitutionally inappropriate’.

39 Donald Trump, 4 February 2017, https://twitter.com/realDonaldTrump/status/827867311054974976.

40 Alan Yuhas, ‘Furious Trump Says Judge Who Defied Him Has Put US “In Peril”’, The Guardian, 6 February 2017, https://www.theguardian.com/us-news/2017/feb/05/trump-travel-ban-suspension-appeal-mike-pence-bernie-sanders.

41 See the Constitutional Reform Act 2005 (UK), s 1 (‘This Act does not adversely affect (a) the existing constitutional principle of the rule of law, or (b) the Lord Chancellor's existing constitutional role in relation to that principle’); s 3(1) (‘The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.’); and s 3(6)(a) (‘The Lord Chancellor must have regard to the need to defend that independence’).

42 Lord Irvine of Lairg, ‘Activism and Restraint: Human Rights and the Interpretative Process’ (1999) European Human Rights Law Review 350, 356.

43 The Bar Council, ‘Bar Council Calls on Lord Chancellor to Condemn Attacks on Judiciary’, 5 November 2016, http://www.barcouncil.org.uk/media-centre/news-and-press-releases/2016/november/bar-council-calls-on-lord-chancellor-to-condemn-attacks-on-judiciary.

44 After this resolution, the Bar Council, led by its Chairman, appeared on more than 2,000 television, radio, online and print media outlets: The Bar Council, ‘10 of the Things the Bar Council Did in November’, 14 December 2016, http://www.barcouncil.org.uk/media-centre/news-and-press-releases/2016/december/10-of-the-things-the-bar-council-did-in-november.

45 ‘Brexit Ruling: Lord Chancellor Backs Judiciary Amid Row’, BBC, 5 November 2016, http://www.bbc.co.uk/news/uk-politics-37883576.

46 ibid.

47 David Boffey, ‘Brexit: Lawyers Confront Liz Truss over “Dangerous” Abuse of Judges’, The Guardian, 6 November 2016, https://www.theguardian.com/politics/2016/nov/05/lawyers-war-liz-truss-over-abuse-judges-brexit-barristers.

48 The Financial Times, https://www.ft.com/content/5f18787e-0b1b-11e7-ac5a-903b21361b43 (accessible by paid subscription).

49 Select Committee on the Constitution, ‘Corrected Oral Evidence: Oral Evidence Session with the Lord Chief Justice’, 22 March 2017, http://www.parliament.uk/documents/lords-committees/constitution/Annual-evidence-2016-17/CC220317LCJ.pdf (emphases added).

50 Select Committee on the Constitution, ‘Corrected Oral Evidence: Oral Evidence Session with the President and Deputy President of the Supreme Court’, 29 March 2017, http://www.parliament.uk/documents/lords-committees/constitution/Annual-evidence-2016-17/CC290317SupremeCourt.pdf (emphases added).

51 Guy Adams, ‘The Judges and the People: Next Week, 11 Unaccountable Individuals will Consider a Case that Could Thwart the Will of the Majority on Brexit. The Mail Makes No Apology for Revealing Their Views – and Many Have Links to Europe’, MailOnline, 2 December 2016, http://www.dailymail.co.uk/news/article-3995754/The-judges-people-week-11-unaccountable-individuals-consider-case-help-thwart-majority-Brexit-Mail-makes-no-apology-revealing-views-links-Europe.html#comments.

52 Ministry of Justice, Lord Chancellor Response to Supreme Court Judgment, 24 January 2017,  https://www.gov.uk/government/news/lord-chancellor-response-to-supreme-court-judgment.

53 See the headline and accompanying analysis in Jane Martinson, ‘The Daily Mail Leads the Way in Brexit Bile’, The Guardian, 24 January 2017, https://www.theguardian.com/commentisfree/2017/jan/24/daily-mail-brexit-tabloid-press-britain-european-union.

54 Miller (n 11) [3] (emphasis added).

55 ibid Lord Hughes, para [276] (emphasis added).

56 Tom Embury-Dennis, ‘Brexit Ruling: Gina Miller Reveals “Horrible” Abuse since Launching Article 50 Legal Challenge’, The Independent, 24 January 2017, http://www.independent.co.uk/news/uk/home-news/brexit-ruling-gina-miller-abuse-article-50-legal-challenge-supreme-court-a7544341.html.