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It is vital we all understand the difference between the judiciary and legislature

It is vital we all understand the difference between the judiciary and legislature

Lord Chancellors Breakfast: legal judges walk from Westminster Abbey to the House of Lords | Alamy

3 min read

Since the appointment of the Independent Expert Panel some 18 months ago, it has been a privilege for me to see more closely the workings of Parliament. Over the same period, there have been some public concerns expressed about the relationship between the judges and the political process.

Since those concerns have often arisen from misunderstanding, it may be helpful to describe how judges really work.

A good start is to emphasise the distinction between Parliament and government. Of course, it is usual for government to have a majority in Parliament, controlling the business of the House, and largely controlling the legislative output. But the public and the press often fail to distinguish between legislature and executive. 

Judges are keenly aware of the distinction. Sovereignty resides in Parliament, not in government. The law which judges apply is made by Parliament, directly in statute, or indirectly by approving delegated legislation. Even where government has drafted the bill or the draft regulation, it is Parliament which makes it law. Much legislation was passed by earlier Parliaments at the behest of parties now in opposition. Usually that law will have been clarified by the courts, establishing precedent. Until amended or repealed, the courts must apply that law, even if it sits uncomfortably with the programme of the government of the day. That can introduce tension. 

Confusion also arises about the approach to interpreting legislation. Judges do not impose their own attitudes or political views on the interpretation of statute. Senior judges are far removed, even privately, from partisan attitudes: some even decline to vote once appointed. The private view of the judge is simply irrelevant to the interpretation or application of the law. This is not merely a constitutional fiction, it is the reality.

While judgments can have political repercussions, that does not mean the judgment was a political decision

At the heart of interpreting statute is establishing the rational meaning of the language in the provision. This is not a quest for the subjective intentions of those MPs who voted for the measure. That would be impossible. Different intentions are often at play and measures represent compromise, even within a governing party. In any event, when the public take decisions affected by legislation, they cannot be expected to look behind the reasonable meaning of the language used. 

Essentially the same approach applies when the courts decide whether decisions of government accord with statute, perhaps most notably with the Human Rights Act 1998. Judges will look to see if the decision under challenge was a reasonable one, was consistent with established government or public policy, and was consistent with the European Convention on Human Rights. Judges do that because the 1998 Act obliges them to do it. That is a requirement of UK law, not European law, and it applies even if it means overturning a UK government decision.

While judgments can have political repercussions, that does not mean the judgment was a political decision. On the contrary, the court must reach the correct legal view without regard for the political consequences. The prorogation decision known as “Miller 2” was a classic example of that, with all 11 justices of the Supreme Court in agreement. 

We all accept that the rule of law is of supreme importance. In Britain, the rule of law long pre-dates modern democracy. Governments are bound by the law too. Events in Ukraine have emphasised the importance of following the rule of law. Let us all hold to it.
 

Sir Stephen Irwin is chair of the Independent Expert Panel and former lord justice of appeal

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