In his recent F.A. Mann lecture Jonathan Sumption Q.C., the newly appointed member of the Supreme Court, took up the question of the proper role of judges vis-a-vis the political branches of government in the UK. Tom Adams has already provided a fine summary and analysis of the lecture in his January post. I urge readers to follow the link to this post (and to read the lecture itself ) before continuing.
In this short comment, I want to offer some thoughts on Sumption’s central theme, namely that judges should not intervene in matters of politics or policy. I shall make two general points, one positive and one negative. In the positive, I shall support Sumption’s call for judges to engage directly with constitutional theory in determining which branches of government should decide which types of questions (for a more general argument about the importance of theory for public law, see my earlier post.) In the negative, I shall support Tom Adams’s conclusion that Sumption’s own constitutional theory is rather unbalanced. While Sumption makes many cogent arguments about the distinctive virtues of politics and governmental policy-making, he needs to say far more about the precise role of judges in the constitution. This task, in turn, requires a far more detailed and nuanced account of the nature and importance of law, the rule of law and individual rights.
Before I move into my arguments, it is worth sounding a few notes of caution. A public lecture of about 9,000 words (or an hour) in length, given just a few months before taking up judicial office (for the first time) in the highest court in the land, with lawyers, journalists and others hanging on your every word, is probably not the ideal occasion to mark someone’s score sheet. Sumption is an unusually bright lawyer. I doubt that his arguments are the best he has, or even that he fully endorses everything he says. It certainly seems premature, to me, to conclude from his lecture that he is ‘conservative’ and ‘naive’ in his views (see Joshua Rozenberg’s article in The Guardian, November 9, 2011.). But I may be wrong. We shall have to wait and see whether, or to what extent, the arguments of Sumption Q.C. find their way into the judgments of Justice Sumption…
The need for judges to do constitutional theory
My positive argument can be made very briefly. It is less of an argument, and more of a textual ‘hear, hear’ for the following passage towards the end of Sumption’s lecture:
“English judges have traditionally been shy about resorting to large constitutional theories to explain their judgments. This is consistent with the pragmatic and undemonstrative traditions of English law, and its distaste for rhetoric and all-embracing propositions. However, the reticence of English judges about the constitutional implications of their decisions has had unfortunate consequences. It has meant that English public law has not developed a coherent or principled basis for distinguishing between those questions which are properly a matter for decision by politicians answerable to Parliament and the electorate, and those which are properly for decision by the courts” (22)
Whether or not this is a fair assessment of the record of English judges, the broad implications of the passage must be correct. The proper division of responsibilities between courts, the executive and the legislature is a deeply controversial, moral question. It can only be answered by reference to some theory of why certain types of decisions should be left to one or other branch of government. The greater the willingness of judges to make explicit their constitutional theory, the greater the prospects for a coherent and principled model of the separation of powers.
Sumption supports this general view with a careful account of the relevance of judicial deference/restraint/reticence (call it what you will) to public law adjudication.
First, judicial deference, where appropriate, is not deference to the minister; it is deference to “the constitutional separation of powers which has made the minister the decision-maker, and not him.” (18) To put this point differently, judges should not defer at all; they should simply exercise their proper constitutional function on some principled account of what that function should be. This is a point made repeatedly by Trevor Allan in his work on deference.
Secondly, Sumption plays down the significance of ‘institutional’ reasons for judicial deference. Factors such as “the lack of justiciable standards by which to assess [particular areas of policy-making], the limitations of the court’s expertise, and the indirect impact which an adverse decision may have on interests not represented before the court”, Sumption argues, “reduce to the level of a practical impediment what is actually an important issue of principle.” (20) The proper basis for judicial power, Sumption reiterates, must be the general application of an underlying constitutional principle across the whole range of government activity.
This distinction between ‘institutional/practical’ reasons and principled reasons for judicial restraint recalls Jeffrey Jowell’s distinction between the ‘institutional’ and ‘constitutional’ competence of courts. Jowell and Sumption may not be in full agreement though. For Jowell, institutional reasons for deference are themselves moral reasons (as opposed to practical, unprincipled reasons). Jowell must be right on this point. The question of what counts as a ‘justiciable standard’ must depend on some principled account of what types of standards judges should apply. Similarly, the extent to which courts require special ‘expertise’ must depend on some principled account of what type of judgement courts should make about the evidence before them (I shall have more to say about these points below).
Perhaps Allan, Sumption and Jowell are all ultimately saying roughly the same thing: that an account of the proper role of judges requires a principled theory of a range of constitutional and institutional factors. As Allan has helpfully put it, the label ‘deference’ is a conclusion about how we should understand those factors.
So What Should Courts Do?
Having encouraged judges to get stuck into constitutional theory, how far does Sumption himself take us towards a convincing theory of role of judges? This brings me to my negative argument. It is striking as one reads Sumption’s lecture how little argument there is about what judges should do. There are heaps of warnings about what judges should not do, and how judges have strayed outside their proper constitutional role (whatever that might be): judges should not intervene in areas of ‘macro-policy’ (6), judges should not use judicial review as a means of expressing their ‘aversion’ to a policy (6), judges should not legislate (7), judges should not balance competing policies (9), judges should not attempt to resolve inherently political issues (18-19), etc, etc. At the same time, Sumption gives plenty of rich and insightful argument about the value of politics as a mode of policy-making: politics is an “essential tool of compromise” (17), the only means of determining the public interest, and the only way of ensuring democratic, public accountability on sensitive issues of public policy (21).
There is no question that a comprehensive theory of the role of judges vis-a-vis the political branches of government must include a detailed account of legislation, politics, policy, and democratic accountability Those theorists who advocate a so-called ‘political’ or ‘republican’ understanding of the constitution place particular emphasis on these types of things. As does Jeremy Waldron in his own uniquely challenging way. But these types of things make up just one side of the constitutional equation. We also need a positive account of precisely what role judges and courts should have in the constitution. How should judges interpret statutes? What limits should judges place on the exercise of executive discretion? As I have said, Sumption doesn’t take us very far at all with those types of questions. He assures us that judicial review is not ‘unnecessary’ (18); and he insists that we need to ‘sort out the law which judges [should] administer’ (19); but, beyond that, he offers only the most indistinct account of judges’ job description.
Take the following familiar situation described by Sumption early on in his lecture (6). A statute gives a minister an apparently unqualified power to act ‘as he or she thinks fit’. The court has to decide whether the minister has abused this power. How should a judge decide this question? We can infer from Sumption’s account of what judges should not do that they should apply the “clear literal meaning [of] the statute”, or they should try to find “sufficient and admissible evidence of the actual [Parliamentary intention].” (7) But the text of statute will very often (if not always) bear many different possible meanings; and it may be altogether unclear from the text (or indeed from Hansard) what meaning Parliament intended. What should a judge do then? Sumption seems to have no answer to this question beyond telling us that, at this point, a judge’s decision will cease to be a legal decision: judges will instead inevitably cross over into the forbidden territory of policy-making and legislation.
Sumption’s failure (at least in this lecture) to advance a rigorous theory of the judicial role is symptomatic of an unfortunate tendency among British constitutional lawyers and theorists. Different views on the role of judges are all too often expressed in metaphors or empty slogans: judges should apply ‘a light touch’ or a ‘hands-off’ approach, or a ‘progressive’ approach to judicial review. The fix for this tendency, I think, is a much closer engagement with legal theory alongside political theory. If it is thought that judges should give effect to the law, then judges and theorists need to grapple with the question of what counts as a legal right, duty or power; and they need to think about what it means for officials or institutions to be governed by law (or the rule of law). These are difficult and controversial questions, but judges and theorists have no option but to confront them. Judges can only make a principled judgment about when to impugn a ministerial decision if they have put together a theory both of politics, policy and democracy, and of law, the rule of law, and individual rights. I would add that judges should be as willing to spell out their legal theory as their political theory. Given his general sympathy to judges doing theory, it would be surprising if Sumption were to disagree with me about this.
Stuart Lakin is a Lecturer in Law at the University of Reading