Statism and Judicial Activism


Statism and Judicial Activism

By Duncan Whitmore

In a previous essay concerning the Supreme Court’s judgment against Boris Johnson’s decision to prorogue Parliament1, we noted that several commentators had criticised the judgment for its “political” nature, calling for greater scrutiny of the judiciary and the judicial appointments process.

It will be argued here that castigating the case as the moment when the judges crossed over from law to politics is wide of the mark, and that a politicised judiciary is a necessary and unavoidable outcome of the growth of democratic statism. As we shall see, this is a trend which Britain has endured for around a hundred years (with an acute acceleration in the post-war era). Consequently, the only way to ensure a relatively impartial, apolitical judiciary is to roll back the size and scope of the state.

The Judiciary in Political Theory

The state’s power of adjudication receives relatively little attention in everyday political discourse. Nearly all of the headlines are attracted by what the executive and the legislative spheres of the state – Presidents, Prime Ministers, parliaments, and so on – are up to rather than the wigged magistrates presiding over dark, dusty courtrooms.

One reason for this is that the non-judicial state institutions have a greater scope to act unilaterally. The government can announce initiatives and Parliament can enact laws without the need for any outside stimulus. The courts, on the other hand, are in the position of having to wait for a case to come before them, i.e. for people to find themselves in an active conflict with other people. The direct outcome of such a case may impact upon only a handful of participants and, even if the principles under scrutiny are far reaching, the judges may rule only on a single specific point at any one time. Moreover, the prevalence of democracy focuses discussion of your political rights on your ability to vote in elections which, in most cases, is not the method of selection for the judiciary. Participation as a jury member is, to be sure, viewed as a civic duty also, but this may occur only a handful times during a person’s life, and direct involvement in a court case as one of the litigants is even less likely. Thus, the perception that the judiciary has a relatively diminished ability to touch everyone’s lives has lent them a degree of remoteness compared to other organs of the state.

This relative neglect is present also in political theory. Alexander Hamilton, writing in The Federalist Papers2, indicated that the judiciary would be the weakest of the three proposed branches of the United States government for much the same reason as we just outlined: that they shall have “no influence over either the sword or the purse” and “neither FORCE nor WILL, but merely judgment”. Moreover, the Constitution of the United States itself specifies the role and function of the Congress and the President at quite some length in Articles One and Two, whereas the judiciary is dealt with in the comparatively succinct Article Three. In fact, the document does not even make explicit the role of the courts in reviewing the constitutionality of statutes, this power being made definitive only by the Supreme Court itself in the later case of Marbury v. Madison.3

Nevertheless, it is likely that the role of adjudication was one of the original founts of state power. For the subject matter of political theory is how to resolve conflicts between individual people arising from the condition of scarcity. If these conflicts were not to be settled by force then they would have to be resolved by adherence to a relevant principle discovered through a co-operative, non-violent forum – the oldest of which is likely to have been adjudicated or mediated attempts at reconciliation. It was the state’s monopolistic usurpation of the determination of these principles that is the foundation of its power. In the words of Hans-Hermann Hoppe, the very definition of the state is “a compulsory territorial monopolist of protection and ultimate decisionmaking [sic].4” The modern power of the judicial branch of the state in influencing these principles cannot, therefore, be ignored.

What is “Political”?

When viewed in the abstract, all law is, of course, underpinned by politics. If a court finds that it is unlawful for A to take property from B then this determination must ultimately rest on some philosophical understanding of the rights and obligations that should exist between A and B. Conversely, if the court found that the government may lawfully tax C then this would be based on a radically different conception of such rights – one that allows at least some people to take property from others.

However, when we speak of the judicial function as being “political”, “politicised” or “activist” we do not mean that the law upon which the judges rule is based on political principles. Instead, we use these terms to refer to at least one of two situations (or both together).

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Excessive regulation has the effect of expanding the scope of the law into everyday life

The first of these is when the scope of the law has expanded into areas which are normally subject to an alternative method of oversight or regulation. At the highest level, this can be when the competence of the judiciary is sought in order to settle disputes and disagreements that were previously and/or better resolved in political forums – in other words, when legal regulation replaces political regulation. For instance, in the UK, “proceedings in Parliament” have long been protected from the possibility of court action by Article 9 of the Bill of Rights 1689. One of the (many) controversial aspects of the Supreme Court’s judgment against Boris Johnson’s prorogation was that the justices had to rule, explicitly, that prorogation was not a “proceeding in Parliament” and was, therefore, subject to judicial review. Thus, the court expanded the scope of its constitutional power into an area that had, hitherto, been regarded as an entirely political matter.

At the lowest level, however, such expansion can occur when an increasing number of aspects of daily life are subjected to rules and regulations which can be tested in court – in other words, when legal regulation replaces market regulation. For instance, the colour, dimensions and positioning of display units in shops is something that shopkeepers will usually decide for themselves in accordance with the preferences of their customers, thus maximising sales and profits. But if laws are passed which transfer the governance of these matters out of the marketplace and into the preferences of politicians – such as the infamous “bendy banana” regulations imposed by the EU – then shopkeepers can be sued in court to determine if they have breached the regulations. The greater the deluge of regulations flooding every aspect of life then the greater the potential for resolving every dispute regarding the same through litigation. In this sense, the judiciary, instead of being concerned with the enforcement of general, well-established rules and principles that apply to everyone, has become a mere extension to the bureaucracy, with the rule of law serving as a masquerade for the rule of lawyers.

A second and more precise sense in which we can say the judiciary is behaving politically concerns how the judges formulate their decisions. In order to regard judges as “apolitical” what we normally have in mind is that they should take the principles which underpin their judgments as a given by finding some “higher” authority for invoking them; a politically activist judiciary, on the other hand, is one which inserts or invents entirely new principles into the legal narrative with relatively little regard for authority.5 In other words, they begin to “legislate from the bench”, encroaching upon decision-making that should be left to either the government or the legislature. This is deemed to be particularly worrisome when the personnel of the judiciary are not subject to the same of kinds of public scrutiny and accountability as elected politicians. Judicial independence is one of the tools designed to ensure an apolitical judiciary by immunising them from the exertion of pressure by politicians. It is, however a double-edged sword; too much independence and too little accountability for their judgments can also lead to judicial activism.

Volksgerichtshof, Reinecke, Freisler, Lautz

It is all but certain that the judiciary in a totalitarian state will be heavily politicised

It should be obvious that, in an authoritarian state, any attempt to maintain an independent, apolitical judiciary would be almost impossible. If courts exist at all in such a state then they may serve to grant a veneer of legitimacy to the state’s actions and/or provide some mechanism for investigation or determination. After all, even a dictatorship intent on exterminating its political opponents needs to have some method of finding out precisely who those opponents are and what they have been up to. But dispensing impartial justice will be very far down on the judicial bucket list because the overall purpose of the system is to serve the ends of the state. Such legal systems will, therefore, routinely invent whichever doctrines and mechanisms they require in order to achieve this aim. In worst case scenarios, such as in the infamous “People’s Court” in Nazi Germany, due process may be thrown entirely to the wolves with the court becoming little more than an antechamber to the gallows. Indeed, if cases cease to be determined by adherence to previously established rules and principles then one can question whether there remains anything that can be remotely described as a legal system at all, rather than just a transmission line for what are, in effect, arbitrary commands.

However, what we are interested in here is how the judiciary is likely to operate in the democratic state. Surely these judges, who have sworn to uphold the rule of law, must be impartial and immune from the vagaries of politics?

In the first place, we should point out that merely repeating the notion that the judiciary is “independent” and “above politics” – epithets which seemed to be gushing both before and after the Supreme Court’s decision against Boris Johnson’s prorogation of Parliament – does not make it so. Indeed, we are entitled to ask from whom are judges supposed to be independent. Given that judicial proceedings are a state monopoly, funded by taxes, then judges are certainly not independent from the state as a whole as they must share in the state’s overall interest in maintaining its ability to extract funding from the population. Thus, when judges must adjudicate conflicts between the state, of which it is a part, and private citizens then the latter cannot, as a rule, expect to receive impartial and unbiased justice. There will always be a tendency to find in favour of whichever entity holds the purse strings, and so the only people from whom the judiciary are truly independent is the mass of tax victims who are robbed, mulcted and exploited by the state. Thus, the difference between a “kangaroo court” in some tin-pot dictatorship and the High Court in London may be a difference of degree rather than of kind.

Incidentally, and as an interesting tangent, it is for this reason that excessive reliance upon the “separation of powers” model of government (which, as we argued in our previous essay concerning the Supreme Court’s judgment against Boris Johnson, the British constitution is gradually morphing into) in preserving liberty is also wide of the mark.

separation of powers

The separation of powers does not guarantee an independent and apolitical judiciary, still less a restrained state

In the first place, the separation of powers, by itself, presupposes, rather than challenges, the acceptance of a central incursion to freedom – the right of the state, via the designation of a “legislative” branch, to enact positive law. But even if we ignore this and look more closely at the supposed “checks and balances” that each branch of the state – legislature, executive and judiciary – are supposed to impose upon each other, it is true that they may each indulge in a degree of one-upmanship and infighting; all three, however, have a shared, long term interest in expanding the overall size and scope of the state vis-à-vis the population. For a bigger state overall means a bigger legislature to make more laws, a bigger executive with more money to manage everything that those laws decree, and a bigger, more prestigious judiciary to oversee it all. Genuine independence and checks upon state growth can only come about when power (or the allegiance to that power) emanates from different sources, each of which has competing, rather than mutual priorities. Historic examples of this include tensions between monarchs, the church and Parliament, but such healthy competition can also exist between the state and the people themselves in small jurisdictions where the size of the state is small compared to the governed citizenry. Who actually does what in cases where a system is subjected to these kinds of pressure is, at best, of secondary importance. If, on the other hand, the overall power of the state rests upon a single source of ultimate authority and allegiance – which, today, is the ballot box – then the organs of the state will never be subject to any truly independent restraint, even if officials for each of the three branches are selected via differing methods. In short, where the power is coming from is more important than what it is.

Even worse, however, not only does the separation of powers fail to restrict the growth of the state; it can, in fact, become an enabler of state engorgement if you view the different functions of the state not as powers but as responsibilities. For example, what kind of restraint is there likely to be upon the legislature to legislate sensibly if they know that the burden of having to enforce the laws they pass falls upon the executive? Why should they bother drafting laws with precision and finesse if they can leave the judiciary to sort out the resulting mess when new laws are found to create problems? (The Blair government has received significant judicial criticism for this attitude when the courts have had to wade through its “obscure” and “impenetrable” statutes such as the Criminal Justice Act 2003.) Why should the executive have any interest in deploying the state apparatus with prudence and thrift when it will be the legislature that takes the flak for raising taxes? Why not just create ever more useless departments and bureaucrats under the guise of “faithfully” executing the law?

Finally, in spite of whatever official powers the legislature and judiciary may possess, they are basically little more than decision makers. All of the real machinery of the state apparatus – the police, the armed forces, the spy networks, not to mention all of the infrastructure and government owned property – is, by necessity, placed into the executive branch because they are the “doers”. It is partly for this reason, and for the practical advantages derived from having “boots on the ground” (not to mention the quasi-monarchical prestige of the office and the personal patronage of its holder), that the US President has come to dominate the other two branches of the Federal Government.6 This is in spite of the fact that, judging from its prominence and extended treatment in Article One of the US Constitution, the founding founders designated the legislature as the most important branch.7 To make matters worse, this growth has been so overwhelming that certain departments falling officially under the aegis of the President (such as the intelligence services) have themselves accumulated enough power so as to exert a degree of unchecked independence within the executive.

Anyhow, the monopolistic dispensation of justice by the state may function relatively satisfactorily (and judges may remain mostly impartial and apolitical) in a minarchist, “night watchman” state which makes few predations on its citizenry. The reason for this is that adjudication, as we indicated earlier, will be limited to cases of real people running into real conflicts with other real people – A stole from B, C assaulted D, E broke his contract with F, and so on. All of these cases will concern relatively specific circumstances that affect specific people rather than grand matters of constitutional rights or sweeping government powers that have the ability to affect millions. Thus, the law will develop at a glacial pace, and will rarely, if ever, have any opportunity to depart from basic principles of justice that ordinary people can understand – principles so old and so well understood that any debate over where they came from would be a chicken and egg story.

Administrative Law

All of this changes, however, once the state begins to expand by wading into areas of life that were previously the business of private citizens, regulated by ordinary, private law. If the state wishes to operate, control, or otherwise regulate areas such as food, energy, transportation, healthcare, education, mining, manufacturing, broadcasting, etc., then all of this requires the creation of an increasing number of agencies, departments, “QANGOS” and other state subdivisions in order to exercise government policy in these areas. The division of labour exists in government as well as in the marketplace – the Prime Minister, the Cabinet, and other elected officials at the very top of government cannot do everything themselves. Thus, the more the government wishes to stretch its tentacles into each walk of life then the more state power will have to be delegated. Such a necessity gives birth to the infamous “alphabet soup” of government agencies – an endless list of tax-consuming bureaucracies piled high with jobsworths whose entire careers consist of determining rules and regulations that control every waking and sleeping moment of our lives.

public bodies

State expansion requires the creation of ever more public bodies and subdivisions

Given, however, that democratic states must (at least) pay lip service to the rule of law, there needs to be some mechanism of control over this endless array of busybodying bureaucrats in order to ensure that they do not behave arbitrarily as mini despots in their own little fiefdoms (and, in any case, democratically elected governments do not wish to suffer at the ballot box on account of embarrassing outrages caused by their subordinates). Thus, the giant, expanding state gives birth to the equally giant, expanding edifice known as administrative law – that area of the law which seeks to ensure that public and statutory power is exercised lawfully. Administrative law may be considered as a subset, sister or extension of constitutional law, and many of the themes involved in each are identical. Generally, however, constitutional law deals with the role, scope and powers of the highest organs of the state and their broad relationship to the citizen, whereas administrative law concerns the legality of the day to day administration of state power by subordinate institutions. So significant has been the development of administrative law in tandem with the growth of the British state that the late Lord Diplock, one of the UK’s leading post-war jurists in public law, stated that it had been the “greatest achievement in the English courts of my judicial lifetime”.8

How does administrative law hold public bodies to account? Basically, provided that you have a “sufficient interest” in the case, you can bring an application for judicial review of a public body’s exercise of its power if you have grounds to believe that such an exercise is unlawful – the latter term meaning, in this instance, that the body in question lacked the legal authority to act in the manner that it did. The traditional exception to the scope of such review is, owing to the doctrine of Parliamentary sovereignty, primary legislation passed through Parliament (although this can now be challenged for contravention of EU law or under the Human Rights Act 1998). Apart from this, however, the actions available are seeking to have a decision of a public body overturned (for which the court will grant a “quashing order”); preventing a contemplated decision from being made (“prohibition order”); or compelling the public body to carry out its duties (“mandatory order”). A few miscellaneous remedies are also available, but damages or compensation are normally precluded. While public and statutory bodies can still be sued for damages in private law where the matter is, say, the breach of a contract into which the body has entered, holding the exercise of public power to account by way of judicial review is entirely separate and based on completely different principles from the ordinary, private law that binds everyday citizens (although both are united nominally under the notion of the rule of law).9

This difference between public law and private law can be illustrated by the erroneous way in which the Supreme Court’s judgment against Boris Johnson’s decision to prorogue Parliament was greeted in some quarters – that is, with the notion that Johnson “broke the law”. Since the eighteenth century10, it has been recognised in English law that public officials are required to have positive authority for their actions when acting in their public capacity; private citizens, on the other hand, can do whatever they like so long as their actions do not breach a particular rule. Liability for public officials is therefore the result of an absence of empowerment; for private citizens, it flows from the presence of restriction. It is, therefore, correct to say that Johnson acted “unlawfully” when he prorogued Parliament as the court found that he had no explicit authority to carry out that act; but, regardless of whether one agrees with the Supreme Court’s ruling, it is inaccurate to say that he “broke the law”. While libertarians are right to criticise the existence of public law – a unique set of values and standards that apply only to public officials, permitting them to commit acts which would ordinarily be illegal for the private citizen – equating the breach of these standards with breaches of private law only serves to undermine the important distinction between them.

Judges are supposed to be apolitical when scrutinising the exercise of public power because their review is meant to be restricted to determining whether the public body possesses this crucial authority that legalises its actions. The judges are not supposed to substitute their own decision for that of the public body.

For instance, say a local council has to choose between two locations – Blackacre and Greenacre – as the best site for a new supermarket. If the council proceeds to choose Blackacre as the best site, then a court can only examine the question of whether the council had the legal authority to make this decision (or to make it in the way that it did, i.e. followed a legally authorised procedure). The judges cannot, on the other hand, decide that it would be “better” for the supermarket to be built in Greenacre. In the words of Lord Brightman:

Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.11

Similarly, John Roberts, the current Chief Justice of the United States, has, with characteristic humility, likened the role of the judge to that of an umpire:

Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. […] It’s my job to call balls and strikes and not to pitch or bat.

It will be argued here, however, that that these modest views of the judicial function are likely to be difficult, if not impossible, to uphold in practice. Indeed, when it comes to administrative law, Roberts’ view in particular is probably too modest as his role of judge isn’t really that of an umpire who must enforce the rules; rather, he is the one to whom the umpires turn when they are not sure what the rules mean, or precisely which decision making powers the rules have granted them. In this regard, while the courts may not substitute their own decisions directly for those of public bodies, they cannot help but introduce and invoke political principles when determining whether power has been exercised lawfully.

Judges and Political Principles

As Austro-libertarians are especially poised to understand, the result of an increasing expansion of the state is to drag decisions that would ordinarily be made by private individuals and entities operating in the market place (under the pressure of the profit and loss test) into the political arena. For example, where should hospitals be built? How much and which types of care should be provided to the elderly, sick or infirm? Which criteria should determine whose children can attend which school? Where should bus stops be sited? How much and what kind of litter can you put in your bin? Which ingredients should go into your food? Who should be able to build a factory, and, if at all, where? Instead of private individuals deciding these things through their consumption, saving and investment preferences, the matters are decided in a political contest concerning how public power should best be exercised and how other people’s money, confiscated from their pockets, should best be spent. In contrast to the marketplace where every interaction is voluntary, the winners get to have their way and everybody else is forced to go along with it. Judicial review is, therefore, at the end of a long line of processes – elections, debates, legislation, creation of the public body, decision of that public body and, finally, challenge to that decision in court – which have served to remove an increasing number of decisions from the business of everyday people and transferred them instead to being matters of public policy.

The motivations of the parties bringing a case for judicial review are one of the first chinks in the notion that public law judicial proceedings are apolitical. Those bringing an action against a public body are unlikely to be concerned purely with lofty aims such as the lawful exercise of power; the reality is that they just don’t like what the public body has done and are trying to find legal/technical methods to put a stop to it when other methods have failed. If, on the other hand, the public body had acted in their favour then they wouldn’t give two hoots about legality. Such an impression of Gina Miller, in bringing her cases against the government during the Brexit process, is still fresh in the mind. Anyhow, the overall result is a continual transfer of power and sovereignty from the individual to the state, and the growth in power of the state at the expense of the individual, and so the judges are really at the end of what is, in essence, a political process. Thus, our first definition of a politicised judiciary – when the law has expanded into areas which are normally subject to an alternative method of oversight or regulation – has clearly been satisfied.

However, it is also the case that, when reviewing the exercise of public power, the courts cannot avoid addressing directly the political ramifications of continued extensions of state power. In other words, how the courts determine what constitutes an “abuse of power” (or an acceptable “decision-making process”) is itself a political question that the judges have to answer. This question is one which the judiciary could approach in either an expansive or restrictive manner, with different effects upon the degree of liberty enjoyed by the citizen.

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In the US, how judges should review the constitutionality of statutes indicates the political nature of holding public power to account

In order to illustrate this in an instance where the political nature of competing approaches is more visible, one can look to the role of the US Supreme Court when it determines the “constitutionality” of a statute – i.e. whether a piece of legislation violates the Constitution. One could suggest that this should be a straightforward proceeding during which judges simply compare the wording of a statute to what is stated in the constitution. Instead, however, it is one of the most politically contentious of processes for the reason that how one should determine “constitutionality” is itself a political question.

The main bone of contention is between “originalists” (or fellow travellers such as “textualists” and “strict constructionists”) on the one hand, and those who adhere to the notion of a “living Constitution” on the other. The former believe that the Constitution should be interpreted and applied with regards to its original meaning as understood by its framers; the latter regard the document as being more open to evolution in accordance with the changing social context. The question is a political one for the reason that adherents to the former philosophy normally sit on the “conservative” wing of the court, with their consequent judgments typically hailed as a victory for “conservative” values and a tendency to restrict the growth of state power; the latter, on the other hand, concomitantly sit on the “liberal” wing and are more likely to rule in favour of the party pressing for the invocation of “liberal” values, which, in contrast to the judgments of their restrictionist colleagues, often involve an expansion of state power.

A not too dissimilar disagreement exists concerning judicial review in the UK (albeit one that is primarily an academic attempt to justify and explain judicial review retrospectively, rather than an ongoing judicial philosophy). This debate concerns whether judicial review is, or should be, focussed on giving effect to “legislative intent” – i.e. that the power of a public body should be curbed according to the limits that the legislature “intended” to place upon it – or whether judges have found, or should find, somewhat broader principles in the common law in order to hold public power to account. Those wedded to the importance of democracy and accountability would intuitively embrace the former – surely the focus of the courts should be on what Parliament intended the public body to do? And yet, certain judicial constraints that centre, in particular, on the procedure a given public body has followed prior to its action/decision – i.e. whether there was a breach of “natural justice” (such as a biased decision maker), an “unfair” hearing, a failure to give reasons, or whether the public body had misled the plaintiff into believing it would act in a different way – do not seem to flow neatly from the concept of “legislative intent”. Instead, they appear to be purely judicial creations, the legal strength of which are more susceptible to changing judicial attitudes rather than anything that is going on in the legislature.12 Moreover, this debate cuts to the question of what is the actual purpose of judicial review. Is it merely to restrain public power? Or is it to try and promote good, healthy and efficient administration? Well thought out decisions following a good procedure will usually turn out to be good decisions that make for a happier, healthier citizenry, so should the courts be involved in promoting good and fair decision making procedures?

It is not important to get into the details of this debate here; we can, however, reframe it in a libertarian light: when confronted with the expansion of state power, should the judiciary merely acquiesce by permitting subordinate state institutions to ride roughshod over the individual? Or should the judges attempt to read into the legality of the exercise of power certain basic rights that are reserved by the individual as a bulwark against arbitrary and unfettered discretion? The latter seems to be the path which the judiciary in England has taken since the 1960s – so much so that they even seem to have been reluctant to entertain legislative attempts to immunise public bodies from the scrutiny of judicial review.13 Indeed, in some ways, it is possible to view the entirety of English administrative law as a kind of judicial “rebellion” against the enormous state expansion which had been birthed by World War II and the subsequent socialist government.

However, even if the judiciary had decided to take a much narrower view of their adjudicative responsibilities – i.e. had permitted public bodies a much wider area of discretion in exercising their statutory powers – the fact that they had to decide upon this at all is in and of itself a political matter. For what the judiciary is effectively having to determine is the constitutional scope of its own powers over other organs of the state. This is something that we see more clearly in big, constitutional cases such as the Supreme Court’s judgment against Boris Johnson’s prorogation of Parliament. The court here found for itself the jurisdiction to review the prerogative power to prorogue, and so had expanded the ambit of legal regulation into areas traditionally subject to political regulation. It was this aspect of the judgment that was criticised for its political nature. But even if the justices had ruled the other way by concluding that they did not have jurisdiction to review the power of prorogation, having to make that choice in the first place puts the judiciary in the position of determining the proper scope of the court’s constitutional competence. This is not something that should be attributed too readily to the nature of Britain’s uncodified constitution, which relies as much upon custom and convention as well as written rules; as we indicated earlier, the US Supreme Court discovered for itself the power to review the constitutionality of legislation, and has developed its own set of philosophies in order to determine “constitutionality”.

Passage of the Human Rights Act 1998 has explicitly increased the competence of the English courts to review the substance of public decision making (i.e. the actual decisions made, not just the decision making process). Public bodies are forbidden from making decisions or otherwise acting in a way that is incompatible with the European Convention on Human Rights. Moreover, courts must, as far as is possible, interpret primary legislation to be in congruence with the Convention. As a result of this, mutterings about the expansion of the constitutional role of the judiciary have been made frequently, particularly when the judges have clashed with the government on matters of public policy, with a number of noted judgments couched in distinctly political language. For instance, in one case concerning the plethora of anti-terrorism legislation that was scribbled with haste after the “9/11” attacks in the United States, Lord Hoffmann had the following to say concerning a provision that allowed for the indefinite, pre-trial detention of foreign nationals:

The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve.14

Libertarians are unlikely to disagree with such a statement. But this sounds more like a speech that should be made on the floor of the House of the Commons rather than in the judgment of a court.

In fact, this and a number of similar cases brought into question the judiciary’s traditional stance that matters of “national security” are best reserved for Parliament. Once again, the actual outcome is less important than the fact that the question is posed in the first place. Moreover, the general entrenchment in English law of human rights jurisprudence, regardless of whether the Human Rights Act is eventually repealed, may cause the judges to question the entire notion of “Parliamentary sovereignty”. What would happen, for instance, if Parliament tried to legislate against certain basic rights that are characteristic of a “free”, democratic society? What if the MPs abolished the right to vote or, perhaps less drastically, extended the maximum amount of time between general elections from five years to twenty years? Is it likely that, with all of this experience of reviewing public power through the prism of human rights, the courts would simply roll over and accept such provisions? Recent judicial murmurings in this regard suggest otherwise.15

The overall lesson is clear: the bigger the state itself grows then so too does the implicit power of the judiciary to expand its constitutional role grow in tandem. What is needed is not greater constitutional delimitation of the roles and responsibilities of different organs of the state (which, in the UK, would probably mean a codified constitution). Instead, we need the thorough and firm ejection of the state itself from all of the matters which should be the business of the private citizen, and a closure of all the bloated bureaucracies and agencies that seek to control our lives. Only then will the judiciary have a chance of returning to its proper function: adjudicating conflicts between real people in accordance with sound, legal principle.

Notes

1R (on the application of Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland (Scotland), (2019) UKSC 41.

2Alexander Hamilton, Federalist No. 78 – The Judiciary Department, McLean’s Edition, New York.

35 U.S. (1 Cranch) 137 (1803).

4Hans-Herman Hoppe, Democracy – The God that Failed: The Economics and Politics of Monarchy, Democracy and Natural Order, Transaction Publishers (2007), 81 [emphasis added].

5Generally, in common law systems, authority is furnished by either precedent or statute; in civil law systems, by the civil code.

6To give a specific example, it was the “intelligence” gathered by the Bush administration that led to the passage in Congress of the Authorization for Use of Military Force Acts of 2001 and 2002 – statutes which authorised the invasions of Afghanistan and Iraq, but have been criticised for their de facto transfer of the constitutional power to declare war from Congress to the President.

7The assignment to the President of the veto power over legislation owes its existence to the framers’ now seemingly misplaced preoccupation with the potential usurpation of power by the Congress. See Alexander Hamilton, Federalist No. 73 The Provision For The Support of the Executive, and the Veto Power, The New York Packet, March 21 1788; Paul Gottfried, The Managerial President, Ch. 20 in John v Denson (ed.), Reassessing the Presidency, Ludwig von Mises Institute (2001), 677.

8R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Business Ltd, (1982) AC 617, 641. While administrative law may have had some effect in curbing state power, libertarians will lament the necessity for its growth in the first place.

9See, for instance, O’Reilly v Mackman, (1983) UKHK 1.

10Entick v Carrington, (1765) EWHC KB J98.

11Chief Constable of the North Wales Police v Evans, (1982) UKHL 10.

12P P Craig, Ultra Vires and the Foundations of Judicial Review, The Cambridge Law Journal 57(01):63-90 (March 1998).

13In fact, one of the foundational cases of English administrative law concerned the presence of an “ouster clause” in the relevant statute, to which the judges gave short shrift. See Anisminic Ltd v Foreign Compensation Commission, (1969) 2 AC 147.

14A and others v Secretary of State for the Home Department, (2004) UKHL 56.

15R (Jackson) v Attorney General, (2005) UKHL 56.

2 comments

  • Excellent article, Duncan.

    But the way I read the “judgement” of the chicken supremes is that they said in essence, “parliament is sovereign, the queen (not to mention Boris) is irrelevant.” And that is the opposite of what you suggest at the end of your essay.

    Let’s not forget that these same supremes theld a “climate change” love-in only 4 years ago. That lot are as totalitarian establishment as any of the political parties.

    • Thank you, I am glad you liked the essay.

      The potential judicial pushback against the “Sovereignty of Parliament” (the legal supremacy of Acts of Parliament) is actually broadly coherent with the judgment in Miller/Cherry, although it’s fair to say that in the latter the judges decided the outcome first then scrambled for the means with which to justify it.

      Judicial erosion of Parliamentary sovereignty and the ability of the courts to invalidate statutes would elevate the judiciary to a higher constitutional status, providing a stronger “check” on the other organs of the state in the manner in which they do in the US.

      In Miller/Cherry, while noting the traditional meaning of the “Sovereignty of Parliament”, the justices were not concerned with the legal supremacy of Parliamentary statutes. Instead, they used the doctrine as a kind of sound bite in order to try and “protect” what the court described as Parliament’s “legislative authority” (that is, its ability to introduce, scrutinise and pass bills). Thus, the judges took the view that the legislature is separate from the Crown/executive, and the attempts of the Crown to frustrate or usurp the constitutional functions of the legislature can be challenged in court. Traditionally, however, “legislative authority” is vested jointly in the Crown and Parliament, and in the event of an impasse between these parties the way out, in the democratic era, should be the dissolution of Parliament followed by a general election, not a court case. (So yes, the court’s ignorance in this regard does indeed seem, as you say, to reduce the Crown to an irrelevance).

      Overall, however, what we can see is a general judicial “squeezing” of the English constitution into something more akin to a “separation of powers” model that we have not traditionally had in this country. No doubt the end result will be a codified constitution. I don’t want to imagine the kind of “rights” they would enshrine in such a document should the current liberal/leftist dogmas prevail!

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