affiliated to the International Association of Constitutional Law
One of the most striking things in immediate reactions to the High Court judgment in Miller is that so many commentators are willing to acquiesce in the crucially important assertion made in the judgment that the case was simply concerned with ‘a purely legal matter’. In their recent intervention, Mark Elliott and Hayley Hooper, while disagreeing with and critiquing aspects of the judgment, accept unwaveringly that the ‘question for the court was solely a legal question about the extent of executive authority’. They further argue that to criticise the decision in Miller as undemocratic ‘is not only wrong, it is dangerous’.
In a similar vein, Nick Barber and Jeff King argue that the judgment in Miller was entirely agnostic regarding the greater political issues at play and was simply concerned with ‘which institution possessed the power’ to trigger the Brexit process. In light of the scandalous response to the judgment from certain media outlets (those with a long track record of vilifying migrants, welfare claimants and trade unionists) Barber and King argue that ‘the reaction to Miller presents a grave threat to our constitutional order, a threat both to the rule of law and to the very structure of democracy in the United Kingdom’.
What is noteworthy about this line of response is that legal scholars have responded to one of the most significant constitutional judgments of the last thirty years, by arguing that the judgment is entirely legal, divorced from the surrounding political context and immune from criticisms that question the democratic propriety of judges deciding on such matters.
In this brief intervention we aim to make two points: (i) the first is a reflection on what it means to adopt a critical stance vis-à-vis constitutional developments and judgments; and (ii) the second, building on the first point, is to demonstrate that there are valid, and longstanding, critiques of the sort of judicial decision making in the Miller case, and that we should not foreclose such avenues of critique.
The Pitfalls of Legalism
With respect to the first point, one need not stray into the arcane arts of continental deconstruction to find a basis for contesting the idea that the Miller judgment concerned ‘a pure legal matter’. There is a venerable tradition in UK public law scholarship—from Harold Laski to John Griffith—of seeking ‘a conscious and realistic jurisprudence’ which recognises the agency of judges, and the necessarily political nature of judicial decision making. As Laski argued, the vagueness in core legal doctrines often ‘tempts the judge to believe that he is simply finding the law when in fact he is really testing and rejecting other men’s views by the light of his own’.
Evidence of this temptation is seen in the assertion by both the court in Miller and numerous commentators that the case was a purely legal matter. That, to borrow Griffith’s phrase, portrays the judges as devoid of ‘political, economic and social’ concerns with ‘no interest in the world outside the court’ when it comes to making a decision. This stance, as Griffith long ago demonstrated, is unsustainable: given the very nature of their role judges ‘cannot avoid the making of political decisions’ when confronted with controversial cases’.
It may be unsurprising that given the massive backlash against the High Court’s Miller judgment, legal scholars would echo the judges in their insistence on the separation between law and politics. In the popular discourse — the judgment has nothing to do with law. In the legalist discourse — the ruling is merely a question of legal technicality and as such is not political. It is a simple operation of applying legal materials, via legal reasoning, on a legal question to determine ‘what the law says’. Thus, the legalist approach views disagreements with the court’s reasoning as ones of doctrine and hence as internal to law.
In our view, both the popular and legalist positions are untenable given the intertwinement of law and politics. The popular response denies the relevance of law and rights discourse to political struggles and to shaping people’s consciousness. In particular, the focus on constitutional questions and landmark cases leaves out the myriad ways in which the background legal conditions shape people’s choices, determines their life conditions, and sanction unjust distributive outcomes.
The legalist discourse merely obfuscates the essentially normative and political questions at the basis of the legal debate. While it may be understandable that the judges seek to deny their agency by claiming that “the law” dictates their position, there is no reason for critical scholars to accept this denial of agency. As one of us has written, the availability of competing and reasonable legal answers to the question before the Court showcases that it is far from being a ‘pure question of law’, as the Court asserted. Therefore, legal scholars should be more forthcoming about the normative and political commitments that shape how one view such cases and thinks such controversies should be resolved.
Democracy and the Courts
Clearly much of the popular discourse responding to the High Court judgment contained outrageous personal attacks on the judges, which we should all condemn. We find it, however, bewildering that legal scholars would deny the reasonableness of the anti-democratic charge against the judicial intervention. Elliot and Hooper, for instance, assert that this charge is both ‘wrong’ and ‘dangerous’. This assertion stands in the face of decades of elaborate discussions about the ‘counter-majoritarian difficulty’ and between political and legal constitutionalists. As has been argued elsewhere, the persistence and irresolvability of these debates illustrates that institutional debates about who gets the final decision-making power when people disagree (judges or majorities) are inseparable from political and normative commitments. They certainly cannot be resolved by the mere assertion that one conception of democracy is correct and the other is wrong. Scholars are free to agree with the conclusion or the effect of the ruling, but they should not cloak this normative endorsement with contestable conceptual definitions. By doing so, they simply reproduce the same questions but at a higher level of generality and abstraction.
Debates about prerogative, parliamentary sovereignty and justiciability are difficult questions precisely because they are not purely legal. Essentially, these are questions about delineating the boundary between law and politics. There is no objective and consensual criterion to delineate this boundary and police it that is external to politics. To assert, as Barber and King do, that the justiciability question is clear given the ‘legal character’ of the question is to engage in a circular reasoning in which the conclusion is already presupposed. The distinction between law and politics in which politics is a space for private interests and arbitrary will, whereas law is a space for rights that are devoid of politics does not withstand critical scrutiny. This specific question is motivated by a political disagreement and has political consequences of which the judges are well aware. The litigation is motivated by the disagreement of opponents of Brexit with the majoritarian choice and seeks to overturn it, or at least to hinder its implementation. This context cannot be dismissed, as Barber and King do, as simply an institutional question about who is empowered to trigger Article 50, rather than the ‘desirability’ of triggering it. To make this assertion is to seek to separate the political question from the institutional arrangements to resolve it.
Thus, we maintain that even supporters of the ruling (and opponents of Brexit) have to admit that the resolution of this political debate at the hands of few judges indeed raises democratic concerns about the exclusion of majorities. They are free to proceed to prefer judges over majorities but it is futile to conceal this choice by claiming that their conception of democracy is superior on compelling rational grounds. They need to make a choice and acknowledge the choice as such.
The legalist posture misses the popular grievances at the base of Brexit. Regardless of its merits, the Brexit referendum expressed a disenchantment with the political establishment and a growing alienation from processes of representation. Surely, this is understandable in an electoral system of first-past-the-post system that eschews proportional representation. Surely, this is understandable, when scholars have demonstrated that western constitutional democracies are not really an indirect form of government by the people, but rather a detailed system of governance that avoids government by the people (see Bernard Manin’s The Principles of Representative Government). Surely, this is understandable when scholars have repeatedly shown that the political system in western democracies is gravely unjust because it privileges the wealthy few over the many and sanctions obscene levels of inequality. Surely, this is understandable when 72 per cent of the voters who voted in a referendum are told that it was merely “consultative” and has no binding ramifications.
The forgoing does not suggest that majoritarian decision-making is inherently substantively correct. But the same can be said about judicial decision-making. Thus, the point is to acknowledge that these are two different processes of arriving at decision-making and only one is participatory. Admittedly, referenda are a limited participatory instrument but it is more representative than the current electoral system and more representative than the judiciary. The referenda’s shortcomings should lead to thinking of ways how to increase participatory forms and make them more sustainable, rather than to abandon them.
Therefore, those who agree with the current ruling’s conclusion should simply argue that they subscribe to it on substantive grounds, rather than deny the non-participatory nature of the judiciary and the ruling. To claim that those who privilege the judicial perspective are also democrats, based on a definitional fiat, is to obscure the consequences of this choice. It seems legal scholars are seeking to have it both: to overturn majoritarian decisions-making and to claim that they are the true democrats.
Paul O’Connell is Reader in Public Law, SOAS
Nimer Sultany is Senior Lecturer in Public Law, SOAS
(Suggested citation: P. O’Connell and N. Sultany, ‘Miller and the Politics of the Judiciary’, U.K. Const. L. Blog (10th Nov 2016) (available at https://ukconstitutionallaw.org/))