Debating judicial power after the Independent Review of Administrative Law
By Gabriel Tan
On 18th March, the Cambridge Union hosted their Final Debate of Lent 2021 on the motion: ‘This House Believes Judges Make Better Law Than Politicians’, with two former Supreme Court Justices, Lord Sumption and Lord Neuberger, speaking on opposite sides of the debate. Of some significance was the fact that the results of the Independent Review of Administrative Law (IRAL) had been released earlier that day, with a notable recognition that the ‘doctrine of Parliamentary sovereignty means that Parliament has the power to legislate in such way as to limit or exclude judicial review’. The government’s response also included a further public consultation on more potential limits to judicial review, including questions on how to successfully give effect to ouster clauses, the subject of a perennial debate in constitutional theory.
Against that background, the debate- although being an intellectual exercise on an age-old question of constitutional theory- had very real practical significance. Whilst the debate involved esteemed speakers like Professor Alison Young and Hannah Markham QC, this blog focusses on the speeches of the two former Judges who took part in the debate.
Those familiar with the judicial and extrajudicial comments made by them will not be surprised to find that Lord Sumption spoke for the opposition (Judges do not make better law than Politicians), with Lord Neuberger speaking for the proposition (Judges do make better law than Politicians).
Lord Sumption’s ‘anti-realist’ attack on judicial law-making
Lord Sumption’s speech- following Freddie Fisk, outgoing president of the Cambridge Union, speaking for the proposition- was based almost entirely on the anti-realist argument against judicial review, popularised by Jeremy Waldron. It is premised on the unremarkable view that we all have differences of opinion about what kind of law we want in our democracy. Our differences will usually be incapable of being tested on objective, mind-independent criteria as we have, in the words of Lord Sumption, ‘different political starting points, moral outlooks, economic interests, with different degrees of sympathy for particular groups’. By making judges the ultimate arbiters of which view is ‘right’, we are privileging the view of a ‘committee of ex-lawyers’ with ‘no pipeline to God’, as opposed to simply letting the numbers count in a majoritarian democracy.
From the outset, Lord Sumption identified as the key issue in the debate, the question of what is ‘good law’. He makes reference to social issues on which the electorate have a wide range of opinions- privacy (privacy of data vs solving crime); environmental protection (protecting the environment vs economic growth); and immigration (moral duty to receive immigrants vs difficulty of social cohesion with large scale immigration)- highlighting that these are issues on which there is no objective criteria to test what the ‘right’ answer is. He even makes a jocular but important (albeit rather ad-hominem) point that ‘people who want judges to make the law are usually educated, comfortably well-off, middle class people of liberal instincts like Freddie Fisk (the outgoing Cambridge Union President)’, who want them to make law because they think judges have the same outlook as themselves.
However, as with most anti-realist arguments against judicial review, Lord Sumption’s argument faces two obstacles. First, they almost always wade into a form of realism. This is seen in Lord Sumption’s argument that the ‘essential criteria’ to good law is not intrinsic excellence, but legitimacy. Law, according to him, only has legitimacy when people have had input into the process by which it is made. For that reason, politician-made law is ‘better’ than judge-made law. However, that legitimacy makes good law is not a self-evidently true, or ‘mind-independent’ proposition. This is demonstrated by Aileen Kavanagh’s entirely credible argument that the central importance of ‘good government’ (whatever that means) can sometimes override the right to democratic participation. Couching this in Lord Sumption’s own anti-realist terms- reasonable people can disagree about whether legitimacy is, as he says, paramount in law-making.
Second, and more importantly, when anti-realists like Lord Sumption refer (quite rightly) to the pervasiveness of disagreement in political decision-making, they fail to observe or address the fact that this disagreement can run all the way down to the legitimacy of decision-making procedures. Many people will no doubt agree with Lord Sumption that the best antidote to ‘bad’ law is at the ballot box, but others (like Lord Neuberger) believe it to be in the courtroom. According to the committed anti-realist, there is no way to differentiate between these two preferences.
The important point for anti-realists like Lord Sumption to note is this: once you decide to base your argument against judicial review on anti-realism, you must be prepared to see it through with anti-realism, failing which your argument will be self-defeating.
Lord Neuberger’s full-throated defence of the judicial specialist
Lord Neuberger’s argument was very much a different one to Lord Sumption’s, representing a full-throated defence for judicial law-making. It did so on the bases of, inter alia: judges going through specific training to make law, whilst politicians do not require legal training to become MPs; judges being full-time professionals in the law, whilst politicians have other matters (e.g. constituency matters) to care about; judges having no agendas (or they at least try to be fair on every issue), whilst real politicians sometimes have an axe to grind and have no objectivity; and judges reaching decisions through dispassionate argument in an informed way, whilst debate in parliament is often curtailed, heated and rarely makes a difference due to the whipping system.
Although Lord Sumption did not get an opportunity to respond to Lord Neuberger’s points, it is likely that- based on his general anti-realist view- he would simply retort that most of Lord Neuberger’s points are themselves subjects of intense disagreement. For example, many in the electorate would certainly want their law-makers to make laws based on ‘agendas’, contrary to Lord Neuberger’s denouncing of ‘agendas’. ‘What is the point of politicians if not to resolve differences in societal agendas?’, they would ask.
Lord Sumption’s likely rebuttals aside, it would not seem unfair to suggest that a member of the electorate- one not from the “middle class liberal” group of lawyers that Lord Sumption alludes to- would regard Lord Neuberger’s arguments as carrying at least a tinge of lawyerly/judicial arrogance. His view of the law can fairly be described as a thing which the electorate is affected by, but should have no say in. His view of politicians is considerably worse- one which conceives of almost no remit to make changes to the law. His alluding to the Ipsos Mori poll about trust in judges being much higher than trust in politicians (84% against 16%) as evidence that judge-made law would command more authority than politician-made law can only be described as a smokescreen, given that the poll was one about trust in relation to telling the truth, a complete non sequitur to the argument he was trying to make regarding the ability to make ‘better law’.
Lord Neuberger’s final argument took aim at ‘that formidable historian, commentator, ex-barrister and ex-Supreme Court judge, Lord Sumption’. He argued that whilst Lord Sumption may have been right in his 2019 Reith Lectures that judicial law-making undermines parliamentary sovereignty, the fact that politicians have themselves handed over some law-making power by virtue of the Human Rights Act shows that politicians are happy to transfer some law-making powers to judges. Aside from the fact that this does not in any way address the motion on whether judges make better law than politicians- but merely that some politicians may think judges make law well in certain circumstances– this was a good end to a speech which can be described as a strong and spirited defence of the judicial role.
A never-ending debate
All in all, the speeches given by the two learned former Supreme Court Justices, as well as the other debaters, are a valuable addition to the never-ending debate on judicial review and where law-making power should lie, stretching back to the US Supreme Court decision in Marbury v Madison in 1803. The above critiques of Lord Sumption and Lord Neuberger’s speeches were produced after what some might regard as an overly sceptical approach to two outstanding speeches on opposite sides of the motion. Those wishing to respond to the government’s latest call for evidence on judicial review reforms referred to at the outset of this blog would find it useful to consider the issues of constitutional theory brought up in the two speeches covered here, as well as those given by the other esteemed panellists.
Gabriel Tan is an LPC LLM student at BPP University (Holborn) and a Durham LLB graduate and is interested in all issues relating to public law and human rights.