OPINION
Baroness Carr (left) was wrong to criticise Kemi Badenoch (right) (Image: PA)
This week, during her annual press conference, the Lady Chief Justice of England and Wales, Baroness Carr, made several surprising, and constitutionally questionable, criticisms of the Prime Minister and of the Leader of the Opposition.
She told reporters that she was "deeply troubled" by the fact that both had expressed public disagreement with a judgment of the Upper Tribunal — allowing a family in Gaza (who had a relative living in the UK) to enter the country on the ground that denying them entry breached their right of respect for family and private life under Article 8 of the European Convention on Human Rights.
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Baroness Carr said that this Parliamentary criticism of the judgment was "unacceptable" and amounted to a failure to respect and protect the independence of the judiciary and the rule of law. She said that “If they [judges] get it wrong, the protection is a challenge on appeal. If the legislation is wrong, it is parliament’s prerogative to legislate”. The Lady Chief Justice went on to say that “where parties, including the government”, disagree with a court’s findings “they should do so through the appellate process”.
There is a fundamental misconception at the root of these remarks — which betrays a view of the Constitution that is incompatible with the core Constitutional principle of Parliamentary sovereignty.
It has never been part of our Constitutional practice that the Government must exhaust its rights of appeal before responding to a decision of the courts by inviting Parliament to legislate to change the law — or to restore what the law was previously thought to be.
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Keir Starmer also came under fire from Baroness Carr (Image: PA)
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Nor is it a requirement that any legislative response must proceed on the premise that the court’s decision was correct, even though the decision must, until the legislation is passed, be accepted as binding. Ministers and other parliamentarians need to be able to criticise the law in order to justify modifying it — and when that law is encapsulated in judgments of the courts, that is bound to involve criticising judicial decisions. It is invariably part of the rationale for legislation of every sort that the courts would decide the matter differently if left to themselves.
Even more troubling is the implication that where Parliamentarians disapprove of the outcome of a case in the courts, it must be because the “legislation is wrong”. In Alice Through the Looking Glass, Humpty Dumpty told Alice “When I use a word, it means exactly what I choose it to mean”. There is something of this in Baroness Carr’s assumption that the law is whatever the judiciary say it is, that they are infallible except insofar as their decisions may be subject to appeal. If the appellate process produces the wrong result, it can only be, she implies, because “the legislation is wrong”.
However, what Parliamentary sovereignty means is, instead, that the law is what Parliament says it is. If the courts fail to construe the law to give effect to Parliament’s intentions, that is the courts’ failure. Defective drafting or some other lack of clarity may render it a forgivable failure, sometimes even an unavoidable one, but a failure by the courts it remains. Legislation can be unclear or misunderstood, or it may need to be amended because it is no longer compatible with government policy; but those things would not make it “wrong”.
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Judges, on the other hand, can be wrong about what Parliament intended and they are more likely to be so if they allow themselves the delusion that they cannot be wrong about what legislation means. Judges (even those at the highest level) are human and therefore fallible; and there is no rule of law or constitutional principle that says that, if the courts fail correctly to understand Parliament’s legislative intentions, it must always be Parliament’s fault.
In the Gaza case, the matter is further complicated by the fact that, for critics of the judgment, it is not the legislation that is at fault. There was no “legal loophole” in the Immigration Rules of which the applicants took advantage; unless (which would be unfortunate) it was the existence, for use in exceptional circumstances, of a residual discretion to grant leave to enter outside the normal rules.
What is wrong with the judgment is how the court chose to second-guess the exercise of the Home Secretary’s residual discretion, as if the existence of the backstop was the equivalent of saying that there are no rules at all except the merits of each individual case.
The denial of leave to enter in the case in question was at least partly because allowing an exception in that case risked creating a whole new class of cases that would need to be treated in the same way, and so would have a legislative effect. In overturning the denial of entry, the Upper Tribunal substituted its own view for the Government’s on morally and politically highly contentious issues about where to strike the right balance between the public interest and an individual family’s interests, both in the case in question and in future cases. It is absurd to suggest that the tribunal’s determination of those issues disqualifies them, and their legislative implications, from consideration in Parliament.
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As Policy Exchange argued in our report ‘The Limits of Judicial Power’, “… reviewing the case law and proposing corrective legislation is constitutionally unimpeachable.” Parliamentarians must be able to debate freely what judges have done and to ask whether those decisions should be reversed. To argue to the contrary, as the Lady Chief Justice did, is to challenge the foundations of democratic law-making.
Sir Stephen Laws KCB, QC (Hon) is Senior Research Fellow, Policy Exchange and former First Parliamentary Counsel