The Abilities required in a Judge

The abilities required in a good Interpreter of the Law, that is to say, in a good Judge, are not the same with those of an Advocate; namely the study of the Lawes. For a Judge, as he ought to take notice of the Fact, from none but the Witnesses; so also he ought to take notice of the Law, from nothing but the Statutes, and Constitutions of the Soveraign, alledged in the pleading, or declared to him by some that have authority from the Soveraign Power to declare them; and need not take care before-hand, what hee shall Judge; for it shall bee given him what hee shall say concerning the Fact, by Witnesses; and what hee shall say in point of Law, from those that shall in their pleadings shew it, and by authority interpret it upon the place.

The Lords of Parlament in England were Judges, and most difficult causes have been heard and determined by them; yet few of them were much versed in the study of the Lawes, and fewer had made profession of them: and though they consulted with Lawyers, that were appointed to be present there for that purpose; yet they alone had the authority of giving Sentence.

In like manner, in the ordinary trialls of Right, Twelve men of the common People, are the Judges, and give Sentence, not onely of the Fact, but of the Right; and pronounce simply for the Complaynant, or for the Defendant; that is to say, are Judges not onely of the Fact, but also of the Right: and in a question of crime, not onely determine whether done, or not done; but also whether it be Murder, Homicide, Felony, Assault, and the like, which are determinations of Law: but because they are not supposed to know the Law of themselves, there is one that hath Authority to enforme them of it, in the particular case they are to Judge of. But yet if they judge not according to that he tells them, they are not subject thereby to any penalty; unlesse it be made appear, they did it against their consciences, or had been corrupted by reward.

The things that make a good Judge, or good Interpreter of the Lawes, are,

  • first A Right Understanding of that principall Law of Nature called Equity; which depending not on the reading of other mens Writings, but on the goodnesse of a mans own naturall Reason, and Meditation, is presumed to be in those most, that have had most leisure, and had the most inclination to meditate thereon.
  • Secondly, Contempt Of Unnecessary Riches, and Preferments.
  • Thirdly, To Be Able In Judgement To Devest Himselfe Of All Feare, Anger, Hatred, Love, And Compassion.
  • Fourthly, and lastly, Patience To Heare; Diligent Attention In Hearing; And Memory To Retain, Digest And Apply What He Hath Heard.

Leviathan, Chapter XXVI: Of Civill Lawes

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The work begins: constitutional reform

The Constitution, Democracy and Rights Commission will be established probably this year.  Nothing in the Conservative Manifesto suggested radical changes in the constitution – it is, after all, a conservative manifesto – but Parliament would be failing in its duty were it not to knock a few blocks back into line where they have become dislodged.

Even a majority of 80 is not enough to overturn the fundamental elements even if that were tempting. The changes proposed are barely even changes. This reality has not stopped incontinent rages on social media.

The Commission from the first day must handle its work sensitively. The objective has been set out up front:  rebalancing our understood constitutional norms, strengthening the rule of law and strengthening the operation of democracy.  Momentum-type commentators like Owen Jones and his endless identikit clones are prophesying instead the destruction of democratic norms and the rule of law, rather like a socialist state I suppose:  this accusation must be met by such demonstrable practical contradiction that the likes of Jones are humiliated.

The motto for any Conservative with a position of strong political power should be one from Shakespeare:  “Oh it is marvellous to have a giant’s strength; but it is tyrannous to use it as a giant”.

The essential duty is to do the right thing.  Politically though it is not enough to do right – the whole process must be handled in an open manner with clear, unarguable objectives and all decisions must be traced to those objectives.  Left-wing commentators will claim credit for preventing a destruction of democratic norms (which is a lovely irony), so politically the derivation of the result must appear as a logical outcome of principles.

There is a trust issue.  It is legitimate for commentators to be wary of constitutional changes when there is a government with enough strength in the Commons to drive through almost anything. Trust must be won by demonstrating trustworthiness.

All this will not be enough to quieten shouty people on Twitter as reason does not rule in that sphere.  Lack of credibility does not stop people getting on Sky News to talk of their fantasies of tyranny. (In America, where not a jot nor tittle of the Constitution can be changed without 34 bickering states and Congress agreeing every word, there are Twitter warriors sincerely telling their followers that the President can cancel elections and rule for life.)  The answer to lunacy is lucidity.

Nothing grand will come of this – Parliament can do anything to the constitution, but  Dire warnings are welcome, but thy must be realistic to be credible, and so we start with what we know.

There will be popular and unpopular decisions to be made, and timing these will be crucial.  It is tempting to make unpopular choices at the beginning and finish the rest of the term with popular ones to boost poll ratings, but government does not work like that, and voters are not so daft either.  Tony Blair announced from the beginning of his time a serious of measures to win over opinion, and the warm glow in opinion permeated through his period in office in spite of all the other things he did. Establishing goodwill and trust early is valuable.

The problem areas are measures which do good but sound bad. Tax cuts for the wealthy may fall into that sphere.

The most relentless drain on poll-ratings must be cuts and virtual cuts – ‘virtual cuts’ being where money was spent as an exceptional item one year and is not available the next, or where the same money is switched to different priorities.

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Wednesbury reform will not reverse the Cherry / Miller decision

Team Boris has turned to reform of judicial review, as I have argued they should several times over the last few months.  However a simple change to reassert the Wednesbury rules will not fix the system on its own. It will not overturn Lady Hale’s decision on the prorogation case (Cherry/Miller).

There is no avoiding going over old ground to some extent, but to avoid repeating everything I will refer to previous articles:

Few judicial reviews actually succeed (about 1%, plus some out-of-court settlements) and this has kept the procedure out of the headlines until the recent Gina Miller cases, which are the reason for the sudden interest in reform. There have been troubling decisions in past years though (as other articles outline), and it is just that their political impact was limited.

Even amongst the claims brought by ‘Remainiacs’, it is only the last decision, the prorogation case, which stands out as a wildcard decision, and one wrongly decided in the opinion of much of the legal profession.

The Wednesbury rules are the main focus of comment and are widely cited with approval. These are a good, principled set of rules for judging the propriety of administrative decisions where the authority is granted by statute and that statute intends that the powers be used for a particular purpose. Therefore a power of compulsory purchase granted to enable infrastructure projects should not be used instead to acquire land for property speculation, and a power to impose planning conditions should not be used to get the developer to provide a new, unrelated civic facility (which are both genuine examples).

However, the Wednesbury rules were invented by judges out of necessity for lack of any guidance from Parliament. As a result, the rules can be stretched by a judge who wants a particular result. Leading judgments emphasise that decision-makers make decisions by their own discernment and judges may not substitute their own ideas, but in other judgments a judge has found a perception of a flaw through which he may crawl to strike down a decision he does not like. All this is because Parliament has hitherto failed to do its duty in defining rules for the interpretation of the powers it has granted. It is for the authority granting a power, namely Parliament, to define what power it is granting.

Once the rules can be defined on the original, Wednesbury principles and Dicey’s concept of the rule of law, then mission-creep can be restrained. That still does not affect the Cherry/Miller case though.

A change in the law will not always change the judgments. Statute law is black and white, but it is interpreted by each judge. There are several examples of judges deciding that an Act passed to overturn a judgment has only really restated the existing law so no change is needed: in this you might think of the attempt to liberalise contempt of court after the Thalidomide case – the words “serious harm” are easy to read as “anything more than negligible harm”.

A point well made in the commentaries concerns interference with prerogative powers. This is not about making governments powerful but about the fundamental rule of law, which is a very Conservative concern. The Wednesbury Rules of reasonableness and purpose apply to delegated decisions because delegated authority is always limited authority, but the Royal Prerogative is primary power, not delegated, and so it should not judged by those limits, only by the actual extent of the power. Some judges have trespassed there, and each precedent invites a new trespass. That must be slapped down. It still does not affect the Cherry/Miller case though.

The Prorogation case of Cherry/Miller is unaffected by any Wednesbury reform.  Lady Hale was careful to word her decision not as a Wednesbury case nor as turning on reasonableness or proper purpose or what was said to The Queen, but as turning on a primary constitutional rule. This rule was hitherto completely unknown – or to put it plainly, she made up.

The Prorogation case is in a line of dangerous decisions treading on the common law constitutional understanding. It will be hard to ensure that no Hale-type usurpation takes place in the future, if judges are prepared to invent new rules, but curbing the tendency must help. This particular case would need a discrete rule, that “no common law rule limits Her Majesty’s authority to prorogue or dissolve Parliament nor the length of the prorogation or dissolution”. (No ifs; no buts: add any condition and you bring the whole Wednesbury apparatus into it.)

It is worrying if Parliament now has to think of constitutional fundamentals which some wild judge might think of overturning. It would be unthinkable for a court to invent a new condition to prevent Royal Assent to a Bill, for example, but an invented rule about prorogation that contradicts every textbook written in the last 500 years would have been unthinkable just a few months ago.

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Judicial review: the Manifesto

If the lofty bien-pensants of the legal profession are aghast, it must be a good thing. The Conservative and Unionist Manifesto for 2019 says:

We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.

That is exactly what I have been saying for months.

The promised “Constitution, Democracy & Rights Commission” could be a Yeatsian monster, but done well and carefully selected (did I leave my card?) it will be valuable. It heralds not a wholesale rewriting of the constitution (Conservatives, after all) but a review of whether it all fits together the way we thought it did. Basically, it is to overturn the Cherry/Miller case – and it needs overturning. I have commented previously on how to do that.

It is interesting too that the same paragraph drops the old commitment to repeal the Human Rights Act (the subject of another article, I feel coming on). Now says “update the Human Rights Act”, and administrative law. The threat of Corbyn and McDonnell looms dark over the nation, and anything which rebukes their desire to seize private funds and property, and to punish where there is no crime, is valuable. The European Convention on Human Rights may be a tottery bulwark against Communism, but it is something.

On judicial review specifically, action taken to reform it should codify the rules so that they are clear. This should strengthen the procedure, and improve public respect for it. Judges are accused of being political when they cass and annul administrative decisions, but if the rules are clear and clearly adhered to, they will have better protection from those accusations.

Look at the Wednesbury rules. These govern the propriety or otherwise of administrative decisions and so these rules are the basis of judicial review, but they are entirely judge-made rules. As they are invented by a judge, another may reinvent them, and as long as the rules are open to flexible interpretation, they empower judges where judges are not meant to be. The rules are well-meant – they are intended to ensure that powers are exercised for the purpose for which they were given and not for a corrupt purpose. They are valuable in that they obviate the need for every Act of Parliament to specify limits and provisos on the powers it grants. It is uncomfortable though that the courts have had to invent these rules, because powers are given by Parliament and in principle no one else should be able to countermand their exercise. Those rules to imply limits on powers granted should have been made by Parliament, and they should be in the forthcoming review.

However, there is another wrinkle. State powers are not the only ones governed by the Wednesbury rules. There are private powers too, like the powers that a trust deed may give to trustees entrusting them with authority to manage or sell the assets entrusted to them, and these private powers also use the language of discretion and decision. Just as property may be entrusted to the care of a trustee, so public powers are entrusted to officials or councils. It is a healthy sign if “trust” is understood as a common concept, howsoever high the trustee may be, or think he is, and governed by the same common rules.

Another court decision has just been published, in which the High Court determined that even in a private contract where it gives one party discretion in his or her actions, that discretion is subject to the Wednesbury rules. This is not quite the first time that a judge has explicitly invoked Wednesbury over private powers; it has appeared hesitantly on occasion since the Socimer case in 2004 but seems to be becoming established, not as a rule to be implied into every contract but as a rule to interpret words such as “reasonably” and “discretion”. That does accord with sense and principle.

In any consolidation, restatement or change to the Wednesbury rules for administrative decisions, Parliament might want to see if they are also inadvertently leaning on private property too. The concept that they all rely on the common concept of entrusted authority is a comforting one.

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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 compete the pattern 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.

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