This is a prize-winning entry in the UK Supreme Court’s 15 Year Anniversary Essay Competition.
Lions or Mice?
The jurist, philosopher and Lord Chancellor Sir Francis Bacon wrote in 1625 that judges ought to be lions under the throne.[1] In response to Liversidge v Anderson,[2] a case decided over three hundred years later in 1941, Sir Wintringham Stable lamented that the judiciary had been reduced to mice squeaking under a chair in the home office.[3] The House of Lords, in his view, showed undue deference to the government of the day by sanctioning the detention of Robert Liversidge even though the state had extremely feeble reasons to justify such detention. It has since been recognised that the decision in Liversidge v Anderson was a blight on the history of the British judiciary and that the case would likely have different outcome if decided today.[4]
One then wonders which four-legged fauna could represent the judiciary in Britain of the 21st Century. This is not simply to satiate curiosity; as Peter Goodrich argues, the imagery of the law is instrumental to its perceived legitimacy.[5] Neither the bombastic heraldic lion nor the timorous rodent is appropriate. Assessing the character of the UK Supreme Court, the newest and most senior iteration of the British judiciary and replacement of the House of Lords, is illustrative. In my view, the UK Supreme Court is symbolic of 21st Century British Constitutionalism. This involves both a significant modernisation and a commitment to restraint on executive power. Nevertheless, there is a subordinate attitude to Parliament that may yet prove troublesome, and a lack of public visibility that ought to be remedied.
Modernisation
The Supreme Court represents an era of modernisation in the judiciary. The sitting judges have eschewed the wigs and robes and substituted business attire. The courtroom is sleek and bright. The insignia, particularly upon the carpet of the courtroom, is distinctly non-traditional in style. From above, the carpet and the benches form an ever-watchful green eye. The Supreme Court replaced the House of Lords as the final court of appeal in the United Kingdom, involving a physical move across Parliament Square to the former Middlesex Guildhall. The appointment process was transformed through the creation of the Judicial Appointment Commission, involving an amicable divorce from the Lord Chancellor in government. Lady Hale become Deputy President and ultimately President – female premiership never having been accomplished by the House of Lords. Four other female judges were subsequently appointed – four more than ever sat in the House of Lords in a judicial function.
Yet, as is the distinctly British way, this was a modernisation, not a revolution. The judges, despite their newly humble attire, remain Lords and Ladies. The building is sleek on the inside but neo-gothic and imposing on the outside. Noting the commendable diversity efforts, representation from non-traditional backgrounds is limited. There are currently two women on the Court – out of a total of twelve. Upstairs from the courtroom sits the Judicial Committee of the Privy Council, inter alia, a reminder of Britain’s colonial past. The Supreme Court exists in the context of its cultural inheritance. This, as indicated below, is also true of the content of its decisions.
Executive Restraint, Parliamentary Submission and Public Visibility
There are manifold cases that the Supreme Court has decided in its 15-year history, some with great legal and political significance and others with less. I have chosen to discuss one case which is indicative of its willingness to exercise restraint upon executive power: Miller (no. 2), or R (Miller) v The Prime Minister.[6] This case regards the decision of then Prime Minister Boris Johnson’s attempt to prorogue Parliament in 2019 for an unusual length of time. The Supreme Court reviewed this attempt and decided that without any reason provided, the attempt was unlawful and ineffectual. This stands in deep contrast to Liversidge v Anderson, whereby the House of Lords permitted the detention of Robert Liversidge by the Home Secretary due to the belief that Liversidge had ‘hostile association’ even though the Home Secretary had not provided any reason for this belief.
Miller (No. 2) is not the only case of the Supreme Court bolstering judicial constraints upon the executive, but it was the most politically controversial, catalysing the Judicial Review and Courts Act 2022. This Act was less toothy than at first anticipated: ‘after much huffing and puffing the Government is not going to blow the house down’.[7] One might speculate what the response of the Supreme Court would have been if the Act had severely limited powers of judicial review. Sir Francis Bacon was a royalist. The lions under the throne represented the power of the sovereignty that he believed resided with the monarch. Today, it is understood that sovereignty resides with Parliament, of which the monarch is but a ceremonial element. While the Supreme Court may be willing to thwart the will of the executive in their use of the royal prerogative it is dubious whether they would ever do quite the same to the legislature.
The milquetoast reservation of Lord Phillips in R (on the application of Cart) v Upper Tribunal: ‘I hope that Parliament will never [oust or fetter the common law powers of judicial review],’[8] is indeed timorous compared to Sir Edward Coke in the 1610 Case of Proclamations: ‘the law of England is divided into three parts, common law, statute law, and custom; but the King’s proclamation is none of them’.[9] The Human Rights Act 1998 empowered the judiciary to make a declaration of incompatibility if it is found that an Act of Parliament is in violation of one of the rights of the European Convention on Human Rights 1950. Likewise, clever methods of statutory interpretation may be employed to blunt the sharp edges of an Act. Neither of these methods compare to declaring a state decision ineffective as was done in Miller (No. 2). Ronan Cormacain argues that the Coronavirus Act 2020 and the range of other related legislation, introduced just months after the decision in Miller (No. 2), violated almost every principle of the Rule of Law (accessibility, prospectivity, intelligibility, predictability etc.)[10] Whether one agrees with the contents and purpose of the set of legislation, it is surely of concern that significant violations of constitutional principles can be met with so little judicial resistance.
Another concern brought to the fore due to Miller (No. 2) is the perception of the judiciary; it was the first time that many members of the public saw the image of the Supreme Court judge. While great strides have been taken to improve the transparency of the Supreme Court in contrast with its predecessor, this transparency ought to go further: from transparency to visibility. To quote Lord Hewart in R v Sussex Justices, Ex parte McCarthy, ‘Justice should not only be done, but should manifestly and undoubtedly be seen to be done.’[11] The role of judicial law-making is increasingly recognised and celebrated.[12] Certain judges have been willing to take the spotlight, Lady Hale and Lord Sumption being perhaps the most prominent. Nevertheless, the work of the judiciary, and in particular, the Supreme Court is under-recognised. I venture that there should be a public swearing in ceremony akin to those held in the United States of America to improve public visibility.
Conclusion
Given the considerations above, the appropriate judicial metaphor is a falcon nested on Elizabeth Tower, partially concealed between the gothic arches. Its watchful green eye peers down Whitehall, prepared to swoop if necessary. A symbol of dignity, restraint and power, it can realistic be observed in Britain, by contrast with its distant leonine relatives. It ‘hopes’ that Parliament will never oust it from its nest for, no matter how loud it screeches in protest, it relies upon the Palace of Westminster for its very existence. Furthermore, it is a falcon that, in my opinion, should be seen more often by the public than it currently is.
[1] Francis Bacon, Mary Scott Ed, The Essays of Francis Bacon (Harvard 1908) 258
[2] [1941] UKHL 1, [1942] AC 206
[3] Lord Justice Keene, ‘Lions or squeaking mice?’ (2002) 42 Amicus Curiae 3
[4] See, for example, Lord Diplock in Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 at para 1011 ‘the time has come to acknowledge openly that the majority [decision] in Liversidge v Anderson w[as] expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right.’
[5] Peter Goodrich, Legal Emblems and the Art of Law: Obiter Depicta as the Vision of Governance (2013)
[6] [2019] UKSC 41
[7] Tom Hickman, ‘Quashing Orders and the Judicial Review and Courts Bill’ (2021) UK Constitutional Law Association Blog https://ukconstitutionallaw.org/2021/07/26/tom-hickman-qc-quashing-orders-and-the-judicial-review-and-courts-act/ [accessed 28 September 2024]
[8] [2011] UKSC 28
[9] [1610] EWHC KB J22
[10] Ronan Cormacain, The Form of Legislation and the Rule of Law (2021)
[11] [1924] 1 KB 256, 259
[12] See, for example, Inigo Bing, The Ten Legal Cases that Made Modern Britain (Biteback 2022)