Judicial Restraint

Francis FitzGibbon

Brenda Hale, the president of the United Kingdom Supreme Court, will retire in January 2020. She took an atypical route to the summit of the judiciary, having been appointed to the High Court from an academic career (she was a professor of law at Manchester University) rather than practice at the Bar. Her speciality was family law, considered by some in the profession as a poor relation, which it may be in terms of earnings, and intellectually soft, which it isn’t. Family cases throw up enormously complex and important legal issues, such as the rights of parents and children as against local authorities, cross-border disputes over children and property, and the ethics of medical treatment against parental wishes. Hale’s academic and judicial work has also focused on social welfare and mental health law, subjects far removed from the bloodless commercial work that fills the CVs of most senior judges.

As a law commissioner (the youngest ever appointed), she developed and piloted the Children Act 1989, which opens with the provision that ‘the child’s welfare shall be the court’s paramount consideration’ whenever a court deals with a child’s upbringing and rights. The ramifications have gone far beyond traditional family law disputes and include the treatment of children in asylum and criminal cases.

After sitting in the Court of Appeal, she was the first woman to be appointed to the Supreme Court’s predecessor, the Judicial Committee of the House of Lords, in 2004. She became the Supreme Court’s president in 2017. The last months of her judicial career coincide with the tenth anniversary of the Court, and its re-emergence as the defender of the UK’s unwritten constitution against the government’s efforts to ‘take back control’ – from Parliament at least as much as from the European Union. The unanimous decision of the eleven justices in the Miller/Cherry case is a profoundly orthodox restatement of the principle that ministers must exercise their powers, including their prerogative powers, lawfully. If no reasons – or no satisfactory ones – are given, the minister’s actions may be justiciable (i.e. open to challenge in court). Hale has been criticised for ‘judicial activism’ by people who disagree with her judgments. But unless they fall asleep on the bench, judges are active – deciding cases one way or the other. Miller/Cherry is an exercise in judicial restraint, in two senses: the court restrained unlawful action by the executive, and restrained itself from making new law.

In a lecture in Kuala Lumpur in 2016, presciently entitled The Supreme Court: Guardian of the Constitution?, Hale described the court’s role as quasi-constitutional:

The next constitutional role which we clearly perform is keeping the government and executive within the powers which Parliament has given them. This is nothing new. The higher courts have been doing this for centuries through the mechanisms of the prerogative writs and declarations and now through the unified procedure for judicial review. In this we see ourselves as the servants of the sovereign legislature.

In constitutional theory and practice, Parliament is sovereign, in the sense that it has the power to make and unmake laws, and both the courts and the executive should defer to it. The growth of executive power during the 20th century prompted the evolution of the courts’ power of judicial review over the actions of public bodies. For much of that time, the courts were compliant sleeping partners of government. A rare and influential counterblast came in a 1941 case, challenging the proposition that the home secretary’s power to intern people thought to have ‘hostile associations’ was not open to judicial scrutiny: in his dissenting judgment, Lord Atkin told the House of Lords that ‘I view with apprehension the attitude of judges who … when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive.’ The dissent has become far more influential than the actual decision.

There is no new thing under the sun. In the 1607 Case of Prohibitions, King James I wanted to judge legal disputes himself, on the basis that lawyers were not necessary: ‘He thought the law was founded upon reason, and that he and others had reason, as well as the Judges.’ Lord Chief Justice Coke disagreed and had the temerity to tell James that ‘the King was not subject to men but to God and the law.’ This did not go down well: ‘His Majestie … looking and speaking fiercely with bended fist offering to strike him, which the Lord Coke perceiving, fell flatt on all fower’ (i.e. on all fours). Executive push-back did not start in 2019, but Lady Hale isn’t one to flinch under the government’s bended fist.

Judicial independence and the standing of the courts relies on more than merely the correct handling of cases. If courts and judges lose their legitimacy, their efforts to maintain the rule of law will fail. In a lecture in 2004, Hale argued for greater diversity among the judiciary:

This matters because democracy matters. We are the instrument by which the will of Parliament and government is enforced upon the people. It does matter that judges should be no less representative of the people than the politicians and civil servants who govern us.

Her recently retired colleague Lord Sumption thought it would take fifty years to achieve gender equality, but she has been active in promoting the ambitions of young women who want careers in the law now, without limits. Lady Hale is a living reproach to anyone who would disparage high-achieving women as ‘girly swots’, a label she wears with pride. Her recent prominence has confirmed her as a role model, and she is even the subject of an illustrated children’s book in verse (Equal to Everything: Judge Brenda and the Supreme Court by Afua Hirsch and Henny Beaumont, published by the Legal Action Group charity).

Lady Hale, like her predecessors Lord Neuberger and Lord Bingham, has been a champion of human rights as indispensable to the rule of law. In two rare dissenting judgments, she held on human rights grounds that there should have been an independent inquiry into the legality of the Iraq War, and that British soldiers in Iraq should have the full protection of domestic human rights law. But no one could call her a soft touch. In 2004 she held that a failed asylum seeker with Aids could be returned to her country of origin with no breach of her human rights, despite the high probability that she would receive no medical treatment and would die there.

A government with a large enough majority could legislate to curb the powers of the Supreme Court and to weaken our human rights laws. There are many who would like it to become ‘executive minded’ once again. The Supreme Court declines to think of itself as a ‘constitutional court’ as such, but it exists to protect the constitution. As Lady Hale said in Kuala Lumpur, ‘some would say the most important constitutional role of the courts is protecting the fundamental rights of individuals against encroachment by the state.’ That is a battle which never ends.


  • 9 October 2019 at 4:06am
    Jonathan Miller says:
    It is a pretty long stretch to suggest that Brenda Hale has been threatened by the government as Coke was threatened by the King:
    "but Lady Hale isn’t one to flinch under the government’s bended fist."

    In my view the presence of this phrase in such a puff piece merely undermines the brazen attempt to flatter Brenda Hale.

    The Supreme Court's recent decision explicitly brings politics into the realm of the Courts. This article even cites the relevant part of the judgement "If no reasons – or no satisfactory ones – are given, the minister’s actions may be justiciable"

    Who decides whether the reasons are good enough? From now on, potentially every exercise of prerogative power is justicable if "a good enough reason" is not stated by the government.
    Where and when were we, the electorate, consulted about such a profound change to our constitution?

    The court then went on to upend the accepted distinction between parliamentary conventions and laws.

    The case was a judicial coup by the Supreme Court, acting in support of a coup by Parliament and the Speaker against the government.

    • 9 October 2019 at 10:51am
      Tanvyeboyo says: @ Jonathan Miller
      It's a pretty long stretch to commence your petulant comment by "It is a pretty long stretch to suggest that Brenda Hale has been threatened by the government as Coke was threatened by the King:
      "but Lady Hale isn’t one to flinch under the government’s bended fist.""
      The unanimous nature of the judgment and the clear presentation of the court's reasoning put the over-reaching and incompetent executive to shame.
      It's come to this that when the Commons performs its duties, under the expert guidance of the Speaker, and this somehow displeases a government, with our without a majority therein, there are expressions of indignation as if this were just some anomaly. And when the highest jurisdiction in the land decides that a matter is justiciable and not merely 'political', then that is called Rule of Law, with proper respect of the principle of Separation of Powers common to many democracies.
      That displeases you. Too bad. Let the executive try again, fail again, fail better.