Written by Lord Lilley
The Supreme Court has ruled that the prorogation of Parliament was illegal. That is now the law so the Government must, and will, obey it – like we obey Acts of Parliament. But just as we can criticise an Act of Parliament, we are entitled to criticise this judge-made law.
The issue of prorogation itself is of secondary importance. When the decision to prorogue Parliament was announced, I was at a dinner in France and everyone asked what it meant. I confessed I could not see what it achieved since it would not stop a rogue majority of MPs again passing an Act in two days to force the Government to postpone leaving the EU. True, it would stop Parliament meeting during the conference recess – but no-one had suggested that it should. Even though Parliament will now meet, it can achieve nothing that it could not do after 14th October. Indeed, Parliament will look pathetic if it meets during the conference recess but then refuses to call an election or hold a vote of confidence.
This prorogation itself may not matter much, but the Supreme Court’s decision nonetheless raises disturbing issues. Who should make the law, on what basis, and to whom should those who make the law be accountable?
In principle, new laws should be made by Parliament. MPs are then accountable if the voters dislike the laws they have passed. The role of the courts is to apply the law and assess evidence as to whether defendants have obeyed them. The courts have to interpret statutes, but they do so primarily according to the wording of the Act, not what the judges think the Act should have said. Common Law has developed on the basis of precedent: when the courts come across a new situation, they look for the principles inherent in previous related cases and apply those to the new situation.
At least that used to be the position in this country. By contrast, the US Supreme Court, the European Court of Justice and the European Court of Human Rights habitually develop new law derived not from statute or precedent, but from vague abstract principles. In practice this means that judges can make laws subjectively, often reflecting the zeitgeist in their milieu.
Our judges, envious of their US and European counterparts, have increasingly adopted their approach – a process boosted by Tony Blair’s decision to set up a free-standing Supreme Court outside Parliament. Jonathan Sumption criticised this tendency in his Reith Lectures as did Hayek who warned (Principles or Expediency, P66 Law, Legislation and Liberty):
“when a general philosophy of the law which is not in accord with the greater part of the existing law [gains] ascendancy… the same lawyers (who are normally rather conservative) become a revolutionary force as effective in transforming the law down to every detail as they were before in preserving it.”
Judicial decisions depend less and less on statute or precedent and increasingly on judges’ subjective views. The noteworthy aspect of their ruling on prorogation is not its conclusion, but that it nowhere discusses either direct precedents or statute. No mention of John Major proroguing Parliament for 19 days preventing discussion of the ‘cash for questions’ report; nor prorogations in Canada and similar jurisdictions. No mention that the Fixed-term Parliaments Act 2011 explicitly stated that it did not curtail the prerogative to prorogue. Still less does it even discuss whether government has the duty to use all legitimate means to prevent Parliament thwarting the democratic decision of the sovereign people to leave the EU.
The implications of this new approach are manifold.
First, it undermines the principle that the law should be as clear and knowable as possible. So long as judges apply the words of the statute or draw on precedents, the person in the street usually gets a good idea what the law is. When it depends on judges’ subjective preferences, how can even a Prime Minister know what the law is until the judges pronounce? Indeed, according to the Supreme Court, even the English High Court judges got the law wrong a few weeks ago.
Second, if judges make the law in line with their subjective preferences, the only people who can know the law in advance are those familiar with their personal views. By chance I recently spoke to a number of non-political friends who know several Supreme Court judges, all of whom had expressed strident disbelief that anyone could support Brexit. I duly warned colleagues that this negative judgement was almost inevitable despite highly-qualified lawyers assuring us that the High Court ruling would be upheld.
Third, when the most senior judges feel free to make new law according to their own personal prejudices, their role inevitably becomes political. That is why the appointment of US Supreme Court judges is a critical political decision. This ruling is a dangerous step in that direction.
Fourth, as judges move in that direction, respect for the judiciary and the law itself will be eroded. Britons expect their judges to apply the law impartially, not to be partisans of one political faction or another.
In short, the Government must obey this ruling. But judge-made law should not be free from criticism. The court’s failure to consider recent statute or precedents is alarming in itself. But it is even more alarming as a symptom of judges taking upon themselves the right to derive new laws from vague and selected abstract principles. That can only lead to politicisation of judges, their selection on the basis of their political philosophy and the consequent loss of public respect for the judiciary and the law. Regardless of our views on prorogation or Brexit, we should all urge the judges to return to applying existing law not inventing it.
Post script: As a Minister, I discovered how subjective modern law-making had become. On the first occasion, to stop privatisation being reversed by foreign state companies taking them over, I planned what became known as ‘the Lilley Doctrine’ – that I would refer to the competition authorities any takeover by a state-owned company. Within government, some feared this might upset the French and suggested that it would contravene European and other laws. The matter was referred up to the Attorney General – the highest legal authority in government – who, after taking the best advice, let me know he was going to rule against me. I asked to see him. There was consternation. To question the law – let alone the highest law officer in the land – was lèse-majesté. However, we met. I argued that his proposed ruling had no solid legal basis. He changed his mind.
The second case was even more revealing of how subjective courts can be. The UK had yet to ratify the Maastricht Treaty. The European Court of Justice was set to rule on whether the UK practice of levying National Insurance Contributions on men up to the age of 65, five years longer than women, contravened EU law. All the legal advice, published and internal, was that we were certain to lose. I warned Cabinet that the ruling would come during the parliamentary recess; that, if all the lawyers were correct, we would have to recall Parliament to impose new taxes to make good the loss of revenue. This would be a huge political drama. But, I added, in my view the court would not find against us. My colleagues were puzzled why a eurosceptic like me expected a favourable judgement: I explained that the ECJ was a political court. They would not provoke a political crisis which might put our ratification of the Maastricht Treaty at risk. And so it turned out – after which other Departments sought my advice on their ECJ cases! How sad that our courts should become as politically predictable as the ECJ.