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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Murmuring the (supreme) judges – 3

A frequent reaction to the bizarre Supreme Court ruling in Cherry/Miller (the prorogation case) has been to demand the abolition of the Supreme Court and to return the its jurisdiction to the House of Lords.  That is a wrongheaded approach, illogical and flying in the face of evidence, for the most part.

Tony Blair made constitutional innovations on the hoof, and the invention of the Supreme Court seems outwardly to be one of these but in truth this reform had been rumbling for a hundred and thirty years. In 1873, in Gladstone’s time, the appellate jurisdiction of the House of Lords was abolished, and a Supreme Court was created for England. However a General Election (remember them?) intervened: the incoming Conservatives restored the power of the House of Lords, but turned it into a real court, appointing qualified judges as life peers. From that point, ultimate appellate jurisdiction was only nominally that of the Lords: no peer ever sat in judgment who was not qualified. It was a separate supreme court in all but name. Constitutional experts even so pointed out the impropriety of mixing the judicature with the legislature.

Tony Blair’s new Supreme Court is little more than a rebranding and removing an anomaly.  Reversing the change would achieve nothing.

Politics and the court

The prorogation judgment is the latest in a line of judgments in which the judges have expanded their own authority to review and quash government actions.

This tendency started in the House of Lords, not Mr Blair’s Supreme Court. The fault is not in the name of the court but in mission-creep. When one embraces the concept that the whole of the state and society is wrapped in a comprehensive code of law then every action must be judged by rules, and therefore judged by judges.

A review of the cases, large and small, shows statistically that very few cases actually succeed (about 1%) which suggests that judges are not leaping in usurp the powers of decision-makers. Even so, where the actions do succeed there is an uneasy sense that judges feel more ready to quash decisions out of caution, to give a chance to stop or postpone a momentous change, and to ask the decision-maker if they are quite sure.  That is not properly in the realm of the judge, but it is a human reaction.

None of this has anything to do with the creation of the Supreme Court in place of the Lords, and so we must, for once, acquit Tony Blair of wrongdoing.

That said, there may be some cause to worry about whether the very name ‘Supreme Court’ tempts a comparison with that of the United States and emboldens its judges to interfere even in the sovereign actions of the state, like their American brethren. The constitutional position is very different, but it is a matter of psychology. At the time of its creation there were legal journalists who asked if the new court would go all American, and not all the judges dismissed the idea out of hand. That is a worrying.

So far, the court has stuck to the constitution as we understand it, until the prorogation case. In spite of occasional dark hints detectable in occasional obiter dicta, no judgment has renounced the Supreme Court’s subjection to Acts of Parliament.

Murmuring the judges

After the prorogation judgment was handed down, the court looked political. On the assumption that we now have an American-style political court, voices were raised proposing confirmation hearings for judges. That though is the surest way to ensure there is indeed a political court, and not of the flavour these advocates for change would want, for Conservatives will choose judges who know the law, while Socialists will choose those versed in Marxist assumptions.

I predicted these moves and other in earlier articles, as readers may recall:

Choosing judges politically would or socio-politically be the greatest constitutional vandalism of all.

Robert Buckland QC, the Lord Chancellor has wisely rejected the suggestion of allowing Parliament to hold such hearings.

Another way

There is an alternative, which is in the hands of Parliament, is unimpeachable in propriety and which is no more than for Parliament to perform a neglected duty. Parliament should make the law clear.

Judicial review is a vast field, such that when trying to write layman’s guide, this site became rather tangled in explanations. I will revisit it frequently no doubt. The rules governing judicial review are all judge-made law, since no rules nor guidance have been given by any Act of Parliament and so the courts have been forced to guess the rules by implication.

Therefore those parliamentarians who make their voices heard in the cause of supervising the judges should do their own part and throw their weight behind actually writing the rules down.  Compose a code to imply into every delegated power how and on what grounds it may lawfully be exercised, or if there are powers in the decisionmaker’s unchallengeable discretion. Parliamentarians should give rules which are to be followed and make them clear. Until they do so, they have only themselves to blame when judges left on their own make rulings they do not like.

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What is judicial review

Judicial Review is a vital mechanism to ensure the rule of law; but misapplied, it can defeat the rule of law.

Before going on to look at reforming the system, we need to know what it is, and the court statistics suggest that most people who go to law do not understand it.  Occasionally it seems, neither do the judges.

An article was promised on reforming judicial review, in the light of the recent wayward judgment of the Supreme Court. Before that can be written though, what is judicial review, and what is wrong, if anything?

That is a giant question. This post will be turned into a standing article over the weekend, with far more detail and analysis, but even that will be only a surface skim.

Judicial review is a procedure by which a court can restrain an administrative body or official from exceeding their lawful jurisdiction. Without these remedies, public bodies would run riot.  In the old days of the Court of King’s Bench, writs were directed at magistrates who had neglected to mend roads and bridges, or courts which heard cases outside their jurisdiction (or of which the King’s Bench were jealous; they practically destroyed cheap, local justice by using ‘creative’ interpretation of statutes to starve local courts).

Today the bureaucracy is bigger and the law governing it is full of tripwires, but the cases are still few, because authorities hire expensive lawyers to check the legality of everything they do.  Nice work if you can get it.

The quarterly statistics published by the Ministry of Justice show that of all the of judicial reviews begun, only 1% result in a win. That is a little misleading, as some must be settled out of court, but it shows how applicants are too ready to jump to a lawyer.

The biggest proportion of cases (about a third of them) are immigration and nationality cases.  These also take up a large proportion of all cases reaching as far as the Supreme Court.  The success rate is still just 1% though.

That 1% figure should encourage bureaucrats that they are in little danger of challenge, but actually it may be worrying: it means they are not taking risks, are staying too safe. I have sat and watched decisions being made, and this rings painfully true.

None of this tells you what the rules are, which is to say on what basis a court may take it upon itself to overturn a decision made by someone with authority. If a council is instructed by law to put all its signs in English and Welsh, and it just uses one language, then a court may intervene to uphold the law, but that is not the problematic issue. The problem is when a court strikes down an action which on the face of it is within the council’s powers, but which breaks the implied “Wednesbury rules”: that must be the subject of the detailed article.

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Action: a Powers and Bodies Bill

When we have a functioning Parliament, it must sweep away the encrusted chaos into which petty bureaucracy has descended. It threatens to overwhelm the state. Parliament is to blame; Parliament must sort it out (but Parliament is itself now is just as dysfunctional).

In July we published Our plan for the new Prime Minister, but he has had a lot on his plate.  One action could begin to clear the Augean Stables of Whitehall: a Powers and Bodies Act.

Initial heads of action for a Powers and Bodies Bill should include:

  • Register the Quangocracy;
  • Rationalise the birth and dissolution of quangos;
  • Codify judicial review;
  • Limit the abuse of power by privileged professional associations;
  • Restore the separation of powers.

In a series of articles I and others will look at each one of these aims, and maybe add more.

Register the Quangocracy

If we do not know what public bodies there are, how they are appointed and what money they receive, and how they overlap, then it is not possible sensibly to monitor them or reform them.

Private companies have to provide, on the public register, a registered office, their constitution and their accounts, and are given a unique identifying company number: that way, anyone doing business with them knows with whom they were dealing and where notices can be served. Public bodies, which get large wads of taxpayers’ money, should be no less transparent. A register would show who they are, how many there are, where they overlap (and so where there is redundancy) and who is responsible.

All public bodies derive their authority from elsewhere and must submit to Tony Benn’s questions: “What power have you got? Where did you get it? In whose interests do you exercise it? To whom are you accountable? How can we get rid of you?”

Rationalise the birth and dissolution of quangos;

  • (Future article to follow)

To rationalise the process of creating, managing and dissolving public bodies, look at what is done these days. It is typical for an Act of Parliament which decrees the creation of a new body to set out in detail its legal form, name, legal personality and such detail as the MPs passing it are unlikely to be bothered with, and Parliament does this time after time. It is not beyond the wit of draftsmen to lay down, in a Powers and Bodies Act, a standard constitution for any new public body, with variations and options perhaps, so that the next time an Act creates yet another quango it can do so in one line.

An advantage of standardisation, apart from saving reams of paper, is to make such bodies comprehensible and, when the time comes, abolishable.

This is the second strand then: a standard procedure for winding old quangos up, or merging or transforming them. If it is made easier, it will be less trouble to clear the detritus of old enthusiasms.

Codify judicial review

  • (Future article to follow)

Judicial review has expanded wildly since the Wednesbury decision, to beyond what any could then have imagined.  Once a rare occurrence, judicial review of administrative decisions is now commonplace.  We need judicial review as a remedy, to ensure the rule of law. The rules applied though are all judge-made law, never reviewed by Parliament, and so judges are free to expand their remit at will.

The astounding judgment of the Supreme Court yesterday claimed to uphold the constitution but in reality smashes through it, inventing rules where there were none.  That has been the case through throughout the development of judicial review.  In that case, rules must be laid down to bring certainty and an end to judicial adventurism.

There is no guarantee that the Miller / Cherry case is the high water mark of judicial intervention. They can go further.  Sir Stephen Laws speculated yesterday that a court might interfere even with the giving of royal assent in future: it would be but a small step of logic from Miller/Cherry. Foreign treaties and declarations of peace and war are now open to challenge.

Therefore it is for Parliament to supply what they have hitherto omitted to do: to define the law.

Limit the abuse of power by privileged professional associations

  • (Future article to follow)

Several professional associations have powers granted to them by Act of Parliament, and they may pretend that they are private organisations with whom the state may not interfere, but where they are exercising legal powers over their members and sometime over others, then they are acting as state bodies and must be accountable for any abuse of the power entrusted to them.

A body such as the Law Society or the Institute of Chartered Accountants has immense power, impose rules on their professions and to ban anyone from practising, or to impose a fine. Hitherto they have been trusted to act like gentlemen, and for the most part they do. However there is nothing to prevent those learned bodies from adopting wayward rules, for example to ban from practice those who belong to a particular political party. They may be coming close to excluding those who will not subscribe to certain minority social ideas. That would be an abuse of powers granted by Parliament, but there is nothing to prevent it.

Interim conclusion

These look like petty matters: a register, or how to create and dismiss bodies, or stopping privileged bodies from acting as they have not acted anyway, and for that reason they have not been addressed by Parliament. However the neglect of such petty matters has allowed for aggregation of inefficiency. Bring all this together, pass a Powers and Bodies Act with all these aspects, and both Government and Parliament will be able to bring back control of their creations and even achieve the ‘bonfire of the quangos’ which is constantly promised and never achieved.


Challenging the challenges

Judicial review is not meant to happen: officials make decisions because the law says they can, so the law only has a place in enforcing those decisions. Judicial review is there to restrain an official from acting outside his authority. The problem is how to determine the ends of authority, and with judges adding their own conditions on that authority as an excuse to interfere.

The judicial review procedure is not there to second-guess an administrative decision and it is not an appeal against a decision., but in the popular imagination judicial review is becoming just that, and the popular imagination has a tendency to coalesce into expectation, and expectation presses upon the law and affects a judge’s willingness to concede. A corrective is needed.

I like the old forms of writ for their exotic names; the Writ of Certiorari, to quash an action, a Mandamus to compel action, a Prohibition (less exotic) and the one we lost at some point, the Quo Warranto, asking “By what authority…?” They come from the days of petty courts and corporations that needed restraint when they exceeded their rights. Now renamed, those writs hover over the shoulder of every public body trying to get on with its job.

The principle is meant to be that decision-makers make decisions and judges only keep them within their authority – the judge does not rule on the wisdom or benevolence of a decision. I have since this post was first published contributed to a guide for this site, but it is a moving scene: every so often one judge will reassert firmly the principle of non-interference, then another judge will ignore that and blatantly step into the decision-maker’s chair.

When given an excuse to interfere, some judges will grasp that power for all it is worth, and through use and abuse, the precedent grows up for more intervention.

A big leap was taken in the GCHQ union case in 1986: here for the first time the House of Lords was willing to apply judicial review to an exercise of the Royal Prerogative, which is astounding: it would be quite within the purpose of judicial review to define the limits of the Royal Prerogative and to restrain an act that goes outside it (the Court of King’s Bench was doing that from King James’s time at least) but the Royal Prerogative is not a delegated power with defined purposes and preconditions – it is the remaining sovereign, arbitrary authority of the Crown – and so it cannot be judged on Wednesbury principles like some local council’s licensing function. The review in the CCHQ case failed, but it opened the door and blew a wide hole in the principles that are meant to justify the power of judicial review. We are seeing this in the Supreme Court this week.

The Supreme Court was created to be the final arbitrator on the applicable law at the highest level of commercial contract disputes and grave criminal appeals. At least half its workload at any given time though is wasted in challenges to administrative decisions. The number of asylum and immigration cases alone is staggering – these should never be judicial matters in the first place, let alone take up the time of the highest court in the land. It brings the judicial arm into a place it should not be and poisons expectations and the court’s approach.

To correct this drift? Parliament in principally to blame, from badly worded statutes, and so when there is a parliament again, not this pointless, zombie, parliament we have at present, then it could take a hand. All those Acts of Parliament which grant powers subject to worried conditions, provisos and procedures must be straightened out, which will be a long task. Better education of civil servants which draft the daft Bills would help too. The biggest impact could come from changing the laws on immigration and asylum, to grant absolute authority to the Home Secretary so that her decisions cannot be challenged: it would free the courts up at a stroke.

More pointedly, perhaps it needs a new Act of Parliament, as a sort of act of settlement in the question, to codify what Parliament means when powers are granted, and to codify the meaning of the Wednesbury rules (if they are to remain). It can put in writing the limits of the judge’s role, to match the austere limitation that judges have pronounced, and other have hitherto disregarded in the absence of black-and-white authority. Finally, it can set down what did not need to be said before; that the Royal Prerogative is the prerogative of The Queen and her ministers, not of the judges, and not something to which judges can add their own conditions and imagined purposes.

Parliament stands mercifully prorogued at present, as long as the Supreme Court does not interfere. It will be useless when it returns. A dissolution is the only hope for reform; as long as the courts do not try to interfere with a decision to dissolve too.

Interest rei publicae ut sit finis litium.

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