“If judges routinely decide issues which are politically controversial, they too will become politically controversial. That is inevitable.”
The wise words of Lord Jonathan Sumption, a justice of the UK Supreme Court from 2012 until 2018. The debate in the UK about the proper role and function of the judiciary in a democracy is not, perhaps, as intense as it has become in Israel, but it is divisive enough and is still awaiting some kind of resolution.
Britain’s current problems with its judiciary stem from the landslide Labour victory in the general election of 1997. It swept Tony Blair into power as prime minister – a position he retained for 10 years. Blair promised to pull the nation out of its dusty past into a bright new future. Among other radical constitutional reforms (such as the introduction of devolved parliaments for Scotland and Wales), he fixed his sights on Britain’s centuries-old system of ultimate judicial appeal.
For centuries, the UK’s highest court of appeal was embedded in the House of Lords, an integral part of the legislature. About 12 senior judges, known as the Law Lords, had a seat in the Lords’ chamber in Parliament as of right, and participated in the legislative process. At the same time, and in the same building, a panel of four or five of them was adjudicating, as the final court of appeal, on cases from across the UK, and indeed the Commonwealth. Known as the Appellate Committee of the House of Lords, although the Law Lords sat around a table somewhat informally, they wore judicial robes.
Israel, UK's unwritten constitutions
Like Israel, Britain does not have a written constitution. But unlike Israel, its system of law and governance evolved slowly over many centuries, developed its own principles, and by definition could not be in breach of them. What’s more, its method of final judicial appeal worked. But if ever there was a blurring of judicial and legislative power, the UK system exemplified it. The separation of powers, regarded by the US, Israel, and much of the Western world as a key constitutional principle, simply did not apply in the UK.
However, this mixture of judicial and legislative power was increasingly criticized as opaque, medieval, and out of step with the times. Reformist voices began to demand separating the judicial function entirely from Parliament and creating an independent Supreme Court.
That was the path the Blair government took. The Constitutional Reform Act of 2005 resulted in the birth of the UK Supreme Court in October 2009. It was established to separate the judiciary from the legislature, to improve transparency in the administration of justice, and to enhance judicial independence.
The Supreme Court is a much more assertive body than the Law Lords had ever been. Some believed it was becoming more political. Lord Neuberger, a former president of the Supreme Court, has said: “Judges must be very careful about arrogating to themselves decision-making powers which properly belong to Parliament or ministers.”
This issue stems from a couple of highly controversial decisions made by the Supreme Court at the height of the Brexit furor in 2017 and 2019, both of which represented a defeat for the government.
After the 2016 Brexit referendum, the UK government wanted to begin the process of leaving the EU through the use of its prerogative powers. Gina Miller, a businesswoman and activist, challenged this, arguing that under the UK’s constitutional principles, only Parliament as a whole could authorize such a major change to domestic law and rights.
The Supreme Court, reinforcing the principle of parliamentary sovereignty, ruled (by a majority of 8–3) that Parliament must authorize the leaving process through legislation.
Two years later, and after the government had failed on several occasions to get the necessary legislation through Parliament, Boris Johnson was swept to power as prime minister, pledging to the nation that he would finalize the Brexit process by hook or by crook.
In 2019, shortly before the scheduled Brexit deadline, Johnson advised the Queen to suspend (or prorogue) Parliament for several weeks. Critics argued that this move was aimed at limiting Parliament’s ability to scrutinize the government’s Brexit plans (and thus frustrate them for the umpteenth time). Whatever Johnson’s motive, the constitutional right of a prime minister to advise the monarch to prorogue Parliament had never been challenged before. It was historically regarded as a matter that the courts had no power to rule on. No previous prime minister’s advice to prorogue had ever been legally challenged in court.
The challenge was mounted in the Supreme Court by Gina Miller and some others, and the court unanimously ruled that it was within its powers to adjudicate the issue, and that Johnson’s advice to the Queen was unlawful because it had the effect of frustrating or preventing Parliament from carrying out its constitutional functions without reasonable justification. As a result, the court ruled that the prorogation was “null and of no effect.” The result, legally, was as if Parliament had never been prorogued. Following the ruling, Parliament immediately resumed sitting.
The Miller cases placed the judiciary squarely in the political arena. Many eminent figures accused the Supreme Court judges of taking too much upon themselves, straying into political territory and policymaking that was way outside their jurisdiction. They have been accused of “judicial activism” – that is, making political decisions under the guise of law, and usurping the sovereignty of Parliament – charges that will not sound unfamiliar to Israeli ears.
Initiating judicial reform in Israel and the UK
Since 2019, there have been a few tentative attempts at initiating reform, but only minor changes have been made. There are influential voices arguing for much more sweeping reform, such as actually limiting judicial review by the Supreme Court and making it harder for courts to challenge executive decisions.
While many voices are raised in favor of safeguarding the independence of the judiciary, some leading legal figures are warning the court of becoming too involved in political matters. “Law is…not a free-standing substitute for politics,” Lord Sumption once said in a lecture. Other leading judges have been equally blunt, if not more so.
For example, Lord Reed, the current president of the Supreme Court, has said: “There is a risk that the courts will find themselves drawn into making political judgments under the guise of applying the law.” Lord Hoffman, a former Law Lord, believes: “The courts have no constitutional mandate to govern the country, and they should not try to do so under the pretext of upholding the rule of law.” Sir Stephen Laws holds: “The courts have become increasingly willing to substitute their own judgment for that of elected politicians, undermining democratic accountability,” a view endorsed by Lord Fauks: “There is a perception, and some evidence, that judicial review has extended into areas better left to political judgment.”
There is one fundamental difference between the UK and Israel. In the UK, judges cannot strike down legislation; Parliament remains the final authority. In Israel, the Supreme Court claims the authority to invalidate legislation, a position much closer to the American model of judicial supremacy. The current controversy in Israel involves government attempts to limit the court’s power to review legislation and executive decisions. Opponents see the effort as a threat to judicial independence; supporters see it as restoring parliamentary supremacy. Compromise is not only desirable but possible and essential.■