Judges and society
Joshua Rozenberg’s new book, Enemies of the People? How Judges Shape Society, refers to two separate subjects. The first part of the title is, of course – without the question-mark – the headline of the Daily Mail on 4 November 2016 for its report of the decision at first instance of the Divisional Court (Lord Thomas LCJ, Sir Thomas Etherington MR and Sales LJ) in R (Miller) v Secretary of State for Exiting the European Union  EWHC 2768 (Admin),  2 WLR 583 (3 November 2016). (See eg on this blog Burrows, Criminal contempt, private lives and children proceedings.) Rozenberg’s book is really about the second part of the title.
So “how do judges shape society”; or, indeed, do they “shape” society at all? Rozenberg, a well-known legal journalist, answers this question by taking a number of Supreme Court and House of Lords decisions over the past few years and shows how the judges have shaped the law in that period of time. He does not seek to disprove his own thesis: that is to show the extent to which judges have left the job of law reform to Parliament. It is a massive subject to which Rozenberg’s can only be a contribution in an important debate; and one which was given special prominence by the two Miller decisions (the first of which the Supreme Court decided in January 2017  UKSC 5;  AC 61; and the second, R (Miller) v Prime Minister  UKSC 41,  AC 373, decided on 24 September 2019).
Supreme Court and Gina Miller
Rozenberg starts with a helpful introduction to what is law (Chapter 1: “New Readers Start Here”): the role of Parliament and the “separation of powers” with Parliament in UK as “unchallengeable” in terms of law-making powers. He explains Lord Hoffman’s “principle of legality” (if an area of law reform is not clear, Parliament must confront what it is doing if fundamental principles are at stake); the common law and the way it is developed by the Supreme Court (which replaced the House of Lords in 2009); the operation and effect of the Human Rights Act 1998, and the working of judicial review. The chapter ends with the question: how far “is it appropriate for judges to develop the common law… and to what extent should they defer to parliament on law reform”? Rozenberg seeks to answer this question over the next nine chapters by reference to specific Supreme Court cases each from different parts of the jurisdiction of the courts.
He considers the Gina Miller Brexit litigation against the government, the question of whether the common law can create crimes or only defences, how the courts deal with “Families and the Law” (by which is meant only divorce, and only a husband and wife: Mr and Mrs Owens), the “right” to death, the “gay cake” discrimination case, press freedom and privacy, and access to the employment tribunal. Under the title “Friends, Actually” Rozenberg comes back – Chapter 10 – to his original question: “Do the judges have too much power?”
Engagement of the reader
Rozenberg does not shy from taking on tricky areas of law and from explaining them to the reader in a way which is not in the least condescending. For example, on p 6, he sets the scene for the book by saying that that “laws are made by parliament”, but that courts “create law through the system of precedent” (which makes the US use of “lawmaker” for their senators and representatives particularly inept). Judges follow these principles. This is the common law.
His means of developing an understanding of law is – again without a hint of condescension – to take individual cases and follow them through, pausing from time to time to ask the reader what he or she might think, at a given stage in the discussion, is the answer the court might arrive at.
Thus of discrimination and the Equality Act 2010 (in Chapter 6) Rozenberg defines discrimination, direct and indirect. He then discusses it in the context of European Convention 1950 Art 14 (prohibition of discrimination) and takes the example – from Northern Ireland – of Siobhan McLaughlin (Re McLaughlin  UKSC 48,  1 WLR 4250 (30 August 2018)) whose cohabitant, John Adams, of 23 years had died leaving her with four dependent children. She was not John Adams’s widow, so she was denied benefit. The High Court judge in Northern Ireland would have allowed her claim, but the Court of Appeal disagreed. He sets out four questions the Supreme Court justices to determine whether Siobhan McLaughlin had been discriminated against. The last was whether there was any objective justification for any discrimination based on Mclaughlan’s status.
Rozenberg takes his reader through each of the question and then shows how the justice’s answered them, especially was the discrimination justified. No said the Supreme Court, especially Lady Hale, who was supported by Lords Mance and Kerr and Lady Black over the dissent of Lord Hodge; and in this case Rozenberg explains fully how the dissent develops and on what grounds. Perhaps this was “shaping” society; or was it – perhaps more fairly – judges doing their job of providing an answer to a problem which a particular case had thrown up?
A difficulty with the book is that Rozenberg’s thesis proves itself by his selection of the particular cases he uses to illustrate it. He says little to disprove his own assertion. He quotes judges who put a “conservative” view; and he discusses “activist” judges. However he cites few cases which illustrate a view to show how judges accept that it is not for them to “shape society”.
Law reform: a matter for Parliament
In R (Prudential plc) v Special Commissioner of Income Tax  UKSC 1,  2 AC 185 the Supreme Court showed itself willing to leave legal professional privilege, in this case legal advice privilege (LAP) – quintessentially a common law doctrine – to Parliament if there was to be reform. A company obtained advice from a firm of accountants on the tax law aspects of a proposed transaction. An inspector of taxes served notices on the company requiring them to deliver to the inspector documents containing information relevant to the company’s tax liability, including material passing between the company and the accountants during the giving of the advice. The claimant company challenged issue of the notices, including on grounds that the material sought was covered by LAP. The judge dismissed the claim. LAP applied only to advice given by a member of the legal profession. The Court of Appeal dismissed the claimants’ appeal.
A seven-justice court dismissed the claimant’s further appeal (Lords Clarke and Sumption dissenting). At common law, said the majority LAP was universally understood as applying only to communications between a client and its lawyers, acting in their professional capacity, in connection with the provision of legal advice. The extent of the privilege was clear, consistent and certain. It was allowed for by the rules and practice of the courts and in legislation. If there was scope for reform, that was a matter for Parliament not for the judges.
Towards the end of his judgment (with which Lord Walker agreed) Lord Neuberger – who describes himself generally as “something of a swing vote” judge (p 182) – introduced a section entitled “A policy issue best left to Parliament” as follows:
“ Apart from these concerns, it seems to me that this appeal gives rise to an issue, possibly a series of issues, of policy, which constitutes an area into which the courts should generally be reluctant to tread. Rather than extending LAP beyond its present accepted boundaries, we should leave it to Parliament to decide what, if anything, it wishes to do about LAP.”
Where Parliament had entrusted administration to one branch of the state, judges should not try to extend that role beyond what Parliament had already provided for. This was emphasised in the period prior to Children Act 1989 when on two occasions, at least, the House of Lords stressed that where parliament had given a job – in this case child care – to the local authority then wardship could not be used judicially to oversee the actions of the social workers. This was explained in the House of Lords in A v Liverpool City Council  AC 363,  2 WLR 948 where a parent had sought to challenge operation of a care order by the local authority. The point returned in Re W (A Minor) (Wardship: Jurisdiction)  AC 791, 797 Lord Scarman spoke emphatically of the importance of the need to understand that where Parliament had “entrusted” powers to a public body, the courts cannot exercise any powers it might have to intervene:
“… The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seized of the same matter, would act judicially. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority.”
This division between state and private individuals was one of the principles on which Children Act 1989 was based. The A v Liverpool principle survives in relation to housing law. In Holmes-Moorhouse v Richmond upon Thames London Borough Council  UKHL 7,  1 WLR 413 a family court used a Children Act 1989 shared residence order to put pressure on a housing authority to provide housing for both parents. The House of Lords said this was not permissible. The existence of a shared residence order was a relevant, but it could not be regarded as a determinative factor for the housing authority. A family court, exercising its own jurisdiction under the 1989 Act, could not use the order as a means of exerting pressure on the housing authority to provide housing for a parent irrespective of all the other considerations which a the housing authority must take into account.
The family court has no power to control operation of a housing department. The point came back in the family courts more recently in F v M  EWHC 949 (Fam),  Fam 1 where in a child arrangements order Hayden J was considering a decision on asylum made by the Secretary of State for the Home Department (the ‘Home Office’). He explained the mother’s position in this country as follows, and his powers to differ – if he wanted to do so – from the decisions of officials within the Home Office. He explained this (by quotation from Lord Scarman in Re W (above)) as follows:
“ … The determination of the refugee status of any adult or child falls entirely within ‘an area entrusted by Parliament to a particular public authority”. In this case the public authority is the [Home Office].'”
Individual’s rights and constitutional principles
On the extent of the application of law to the facts of a case the central passage of the second Miller case was that the judges can only say what they think the law is, and how individual’s rights and administrative bodies can be regulated as the Supreme Court explained in the second Miller case  UKSC 41;  AC 373
“ The legal principles of the constitution are not confined to statutory rules, but include constitutional principles developed by the common law…. Such principles are not confined to the protection of individual rights, but include principles concerning the conduct of public bodies and the relationships between them. For example, they include the principle that justice must be administered in public (Scott v Scott  AC 417), and the principle of the separation of powers between the executive, Parliament and the courts (R v Secretary of State for the Home Department, Ex p Fire Brigades Union  2 AC 513, 567-568). In their application to the exercise of governmental powers, constitutional principles do not apply only to powers conferred by statute, but also extend to prerogative powers. For example, they include the principle that the executive cannot exercise prerogative powers so as to deprive people of their property without the payment of compensation (Burmah Oil Co Ltd v Lord Advocate  AC 75).”
It is to help people who ask these questions of the courts that the judges are appointed. These questions can only be answered by judges as they consider how the law is to be applied to the facts as presented by each party. As Rozenberg concludes, the combination of “activist” and “conservative” judges we have is a guarantee against “the arbitrary use of [state] power” (p 189). In rocky Brexit times, we may find “judges are just about the only friends we have” (p 190).
Enemies of the People? How Judges Shape Society (Bristol University Press, £11.99), Joshua Rozenberg
Featured image: The UK Supreme Court during the hearing of the second Miller appeal (2019). Photo by Paul Magrath.