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In a speech last week, Robert Buckland quoted from “Professor HLA Hart, one of the foremost legal philosophers of the last century” in a lecture called ‘American Jurisprudence through English eyes: The Nightmare and the Noble Dream’ “.
The nightmare is judges creating law, according to Hart (“deciding dockets of moral and political questions”) and the dream is judges discovering it (“threading fundamental principles through every case”).
The Lord Chancellor went on to utter what must be one of the most understated sentences ever pronounced by a politician.
“The core idea of the nightmare – that judges are placed into the position of legislators or political decision makers – is not unimaginable,” he said.
You can say that again. So can Buckland himself – for, less than two years ago, the highest court in the land produced the ultimate politicised judgement, the memory of which will surely have crossed his mind while writing his speech.
For casting aside the classical view previously reached by the Lord Chief Justice, the Supreme Court reached a different one on the lawfulness of a prorogation by confusing the legislature with Parliament as whole.
Since politicians leak and judges don’t, we don’t know the story of how the court, under the presidency of the spider-brooched Lady Hale, reached its unexpectedly unanimous verdict (and may never know).
The Lord Chancellor tactfully swerved this example, with its baleful implications for our constitutional balance, and reached instead for a less contentious one – an assisted suicide case, R (Nicklinson) v Secretary of State for Justice.
In his emollient way, he explained that it called, in the words of one commentator, “for a decision which balanced competing fundamental institutional values”.
These were “whether the court should or should not strike the balance of moral values itself or accept the balance as struck by Parliament”.
Buckland was pursuing a political purpose amidst this lawyerly language about political decisions: namely, a stealth raid on judicial power, and the New Labour legacy that has helped boost it.
It would be unfair to lay at Tony Blair’s door all the developments that have politicised the courts over a long period: EU membership, the evolution of the ECHR, and the importing of legal ideas from abroad, such as proportionality.
But by removing the Lord Chancellor from the judiciary, merging him with the Justice Secretary and placing him in the Commons (with one exception), Labour pulled out a linchpin from government that helped hold its branches together.
And just as it took from the Lords the country’s most senior judge, it also took from it our most senior court: the law lords were replaced by the Supreme Court.
That deliberately American-style title paved the way for the American-flavoured politicisation that has followed. There are two logical solutions to it.
The first is to complete the halfway house, and have US-style hearings in Parliament before judges are appointed. The second is to demolish it, and move both Court and Chancellor back to the Lords.
Which takes us back to Buckland’s speech and Government policy. As he said last week, there is other business already in motion: a review of administrative law, which has reported, and of the Human Rights Act, which hasn’t.
Such piecemeal exercises are Ministers’ preferred vehicle for reform now that they have ditched, as this site has previously reported, the Conservative Manifesto commitment to a Constitution, Democracy and Rights Commission.
The Lord Chancellor said last week that the Government wants “to examine the role of the Lord Chancellor itself” and that “we are still in the early stages of that thinking”.
Nonetheless, he knows very well that logic isn’t everything in politics, so both the options described above appear to be out.
Buckland is not going to propose the abolition of the Supreme Court (or indeed of his department); nor does he favour parliamentary hearings for judges – “a nightmare for the UK, which we should seek to avoid”, as put it.
However, his regret at the loss of the linchpin – his word – and reservations about the Lord Chancellor being thrust into the “hurly burly” of the Commons suggests a solution nearer the first option than the second.
Sources suggest that the Lord Chancellor could be given his own department, returned to the Lords, and once again become both a senior judge and a Cabinet member at once.
Whether the Justice Department would be sustainable in the wake of such change, with a remit largely confined to prisons, would ultimately be a matter, like others, for the Prime Minister, the Government and Parliament.
Half of a reforming programme to quell “the nighmare” and stir “the dream” could centre on the Lord Chancellor, and the other half focus on the Supreme Court itself – a matter that Buckland ducked in his speech.
One solution, already floated within government, would be to change the name of the court, cut the number of permanent judges and bring in others with specialist knowledge to hear individual cases.
That idea emerged from Policy Exchange’s Judicial Power Project. Another would be – as its head, Richard Ekins, has written on this site – to “restructure how and by whom final appellate jurisdiction is exercised”.
Such an approach would be consistent with gradually reviving the Law Lords, perhaps initially through panels of retired judges who are now peers.
Whatever the Government decides to do, it may be worth noting that the Lord Chancellor referred during a discussion after his speech to Parliament as “the final court of appeal”, as he has done previously.
(Which recognises that though we earlier called the Supreme Court “the highest court in the land”, it isn’t, constitutionally speaking: the highest court in the land remains “the high court of Parliament”)
Certainly, removing the Lord Chancellor from the cockpit of judicial debate would make it easier to take up the project’s proposal for enlarging his role in judicial appointments.
Buckland was keen to stress last week that politicisation isn’t the consequence of a power grab by the judges – quite the opposite, he suggested.
“We must be honest about the fact that rushed and poorly drafted legislation leaves those gaps and judges frankly have an unenviable task in filling them,” he said.
“At best it is a Parliament shirking its duty which leaves jurists uncertain of whether it did or did not intend a certain outcome, at worst it is contracting out its own decision-making function.”
The Lord Chancellor was gilding the lily – partly in order to support his tension-cooling view, stated before and repeated last week, that the judges are not “the enemies of the people”.
But while it is true that judges have sometimes walked on the wrong side of the line – consider the case of the Prince of Wales’ black spider letters – they can scarcely be blamed if the line is wonkily drawn in the first place.
If the Commons doesn’t consider legislation properly, leaves it to the Lords to tidy up, and the details of a Bill fall through the cracks, don’t blame the judges if they have to fill them.
And if Parliament deliberately leaves difficult stuff to the courts – like the hierarchy of protected characteristics in equality legislation – don’t blame the judges, either, if they’re forced to decide who’s furthest up the queue.
Hart was a Brit, for all his consideration of law in the United States, but we close with an American – Theodore Roosevelt’s famous saying about speaking softly but carrying a big stick.
Buckland speaks softly and how large a stick he carries is still unknown. But the facts are consistent with that stealth raid on judicial power, even if it’s not clear yet how much he wants to carry off.