The rule of lawyers

The number of times I have touched on the problems of judicial review since the Supreme Court’s wild prorogation ruling is matched only by the number of times other commentators have, and the think tanks which may shape actual action after the election are at work. The unwelcome intrusion of judges is a target for reformers.

Another issue recently highlighted by the Policy Exchange is the intrusion of lawyers into judging battlefield decisions – ‘lawfare’ as it is called. This is in the sights too. The growth of law in war is all part of the same unconscious movement in the practice of litigation.

A principle of the common law is that it covers every situation, which is the point of its being common to all and a basis of a settled society with understood rules – so that for anything that happens one should be able to say what the legal position is. This may just be judging whether an action is criminal, or saying what rights a man may have and if he should have a remedy against anyone who infringes those rights. Over centuries the system of law has been determined by countless decisions, to make one, vast field of study and one comprehensive system.

The theory that the system of law is comprehensive and able to be applied in any situation leads to strange consequences, like trying to judging actions on a battlefield from far off. This is new. A generation ago, senior lawyers, barristers and solicitors and judges too, knew what war was. They had been on the battlefield as officers. They had seen comrades blown up beside them, they had made snap decisions and sent men to certain death for a wider objective, They had loosed off rounds at the enemy and closed with a bayonet, remorseless. Then in peace they took to the law. Had any desk-wallah then told them that every decision had to be judged by rules of law, or that a shot is murder unless the enemy has been politely asked to withdraw, their reactions would have been firm. Now we do not have that wartime experience at the bar or on the bench.

In judicial review the position is not as bad as campaigners think, but it is still bad. It is also uncodified, so that a judge can be activist if he or she wishes. The Supreme Court’s prorogation judgment in Cherry/Miller rightly caused outrage, and there is nothing to suggest that it is the high water mark of judicial interference. Once emboldened, the judges with knock at the next frontier.

The reasoning is the same – the law must be comprehensive and therefore there must be a rule for everything. In the prorogation case there was no rule to define the prerogative power of to prorogue parliament and so the court blatantly made one up, with no authority no precedent and no reason known to law. In the context of the constitutional textbooks, this was incomprehensible, but in the context of a theory that the law must govern every act of every sensible being, it has a horrid logic.

The same is seen in other cases – in the Chagos case several judges were prepared to overturn even primary legislation, in that case an Order in Council within the Crown’s plenary authority over a colony, by inventing a rule not hitherto known to law. In the Anisminic case a section of an Act of Parliament was effectively annulled by the court by sleight of hand in its interpretation, and the court went even further in the Privacy International case in 2017 to ignore an Act of Parliament: these Acts excluded the control of the court, and this would be an outrage to a judge, as everything must be judicable. In this context, the Cherry/Miller prorogation case is a natural step on a road, and we are not at the end of the road yet.

Judges have always ‘made law’ in the sense of filling in the gaps where no previous decision had been made. That power is not there to make new rules. Only Parliament can properly do that. Making law must become a habit though, to complete the pattern (so there are no gaps to be filled by judicial imagination) or to build a hedge about the law.

The courts are tasked with upholding the rule of law, and all these cases have been decided in the spirit of ensuring the rule of law by imposing rules, even where there were none. In doing so they are not upholding the rule of law – that assumes that law that is stable and understood. They are instead imposing the rule of lawyers.