Britain’s highest court is hearing arguments this week over the legality of Prime Minister Boris Johnson’s prorogation of Parliament earlier this month. Its decision is unlikely to shift entrenched views – and may not make much difference to the path or outcome of Brexit.
But a piece in The Times by political commentator Daniel Finkelstein suggests that it may be of the greatest importance for the Supreme Court itself. In his view, the hearings “may mark the moment Britain stopped being a political democracy restrained by law and became instead a legal democracy tempered by politics”.
It all comes down to the role of the courts and their relationship to Parliament and parliamentary power. In the absence of a written constitution, the Westminster tradition is based on parliamentary supremacy with the courts as interpreters. The question is to what extent that power might be restrained by quasi-constitutional mechanisms such as human rights or indeed some other body of principle – such as those embodied in the Treaty of Waitangi.
A detailed exploration of this question and its implications for politics and society can be found in the Reith Lectures given by former UK Supreme Court judge Jonathan Sumption earlier this year (still available from the BBC in transcript or podcast).
As Finkelstein puts it: “Is our system based on the political decisions made by Parliament and the executive in which it places confidence? Or are there laws and arrangements that exist regardless of Parliament’s view?” Because the latter position brings unelected judges into political decision-making.
Of course it’s not a completely binary choice. Finkelstein cites the case for “constitutional balance” made by a former lord justice of appeal whereby practical limits are imposed on parliamentary sovereignty by the courts applying broad principles of “reason, fairness and the presumption of liberty”. That still leaves a lot of room for judges to question the decisions of the people’s representatives.
But there is a restraint on judicial activism. As Finkelstein points out: “Judges only possess authority because they stand at a distance from the fray”.
Given recent trends in Commonwealth jurisprudence, it seems probable that a question of this sort would have arrived sooner or later. But what will it mean for judges themselves?
In the US, the political nature of the legal process is acknowledged by confirmation hearings for Supreme Court judges (such as those in 2018 for Brett Kavanaugh), although still cloaked in judicial procedure and language. By contrast, in Commonweath countries politicians select judges from the legal class, without much transparency – and sometimes little understanding – of their political leanings.
Finkelstein asks if parliamentary confirmation for British judges is now desirable.
Perhaps we are in the brief interval where judges have emerged into the political arena but are still accorded the deference and authority derived from a more restrained judicial tradition. While Heraclitus reminds us that all is flux, it is still a slightly melancholy prospect.