Calls for the courts to narrow their remit are deeply troubling

There is much to absorb from the lord chancellor’s thoughtful speech to the conference on the constitutional reform agenda, hosted by UCL on 17 June. But for any lord chancellor to suggest that the courts are “reading too much into the rule of law” is perhaps startling.

A big part of Robert Buckland’s talk was given over to the need for “balance” between parliament and the courts. Central to this was his wish “to restore what at one time was the very conventional thinking that parliament makes laws that give power to the executive and are checked by the judiciary”.

But is that not what happens now? Leaving to one side the fact that not all laws are made by parliament, it is the job of the courts to apply and develop the common law, as well as statute law; and not all laws made by parliament confer powers on the executive (most criminal law doesn’t, for example).

Nonetheless, the basic point that the courts interpret and give effect to laws passed by parliament is surely uncontroversial. So what problem is the lord chancellor trying to solve, and where does he think the current “balance” is wrong?

The answer seems to be that he perceives a risk of the courts taking too broad an approach to the rule of law, with the result that the concept becomes a “political football”, and that the courts will end up substituting their views, on what are essentially policy questions, for what parliament has enacted.

I am unpersuaded by the diagnosis. In any event, it is unclear what the lord chancellor thinks the cure should be.

Obviously, it is possible to disagree with decisions of the courts in individual cases. Judges of course sometimes disagree with one another. I happen to agree with the lord chancellor that the Supreme Court went wrong in the Evans case on the Freedom of Information Act and the Prince of Wales’s letters, and should have given effect to the ministerial veto that parliament had created.

But I don’t see this case, or the small number of others mentioned by the lord chancellor, as evidence of a systemic tendency for judges to overplay the rule of law – or become “politicians by proxy”, as he puts it.

First, although the lord chancellor – perhaps curiously – says that “the rule of law itself is not a legal concept”, it is clearly a concept that the courts can and do take into account in providing, at least, some parameters or core principles with reference to which the law (including the law as created by parliament) should be interpreted and applied.

Second, “law” and “policy” are not separate self-contained categories. Parliament and the executive use the law as a means of giving effect to policies. And there’s nothing new or particularly surprising in people bringing judicial review claims because they disagree with the substance of the relevant policy or its application.

Many judicial reviews involve heavily contested areas of policy as well as law. It’s not realistic to suppose that the courts can somehow be “kept out of” policy or politics, and I don’t suppose they feel the need to be “protected” from it. But it is the job of the courts to apply the law, not adjudicate on the merits of the policy.

I don’t believe there is any confusion about that, or that any judge would disagree with the lord chancellor that their role is to “ensure that their judgments properly reflect the intent of our elected parliament”.

Finally, without wishing to dwell on history, I cannot agree with the lord chancellor’s characterisation of the row over the Internal Markets Bill, and the proposal to legislate to override the EU withdrawal agreement and the Northern Ireland protocol.

Certainly, as he says, “some of the arguments were political ones”, but I don’t agree that they were “framed incorrectly as constitutional ones”. The issues undoubtedly were constitutional. In the government’s own statement on the legal position of the bill, it stated that: “Parliament would not be acting unconstitutionally in enacting … legislation which is in breach of the UK’s treaty obligations”.

I and many other commentators disagreed with that analysis. Even if you accept – which I do not – that the legal and constitutional problem would only have arisen if the provisions of the bill had been commenced or exercised, the fact that the government took this position at all remains profoundly concerning, and the episode continues to cast a shadow of doubt over anything the government says about the rule of law.

So, although one gets the message that the government thinks the courts sometimes go too far (nothing new in that), an appeal that they stick to some narrower concept of the rule of law is troubling and, I suspect, unlikely to work.

Sir Jonathan Jones KCB QC (Hon) is the former Treasury solicitor and head of the Government Legal Department (2013-2020)

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