History of Criticism Against Judges in the UK
- The judges that heard the matter of Duport Steels Ltd are, Kenneth Jones J. Lord Denning M.R., Lord Scarman, Lawton and Ackner L.JJ. Lord Diplock, Lord Fraser of Tullybelton, Lord Edmund-Davies , and Lord Keith of Kinkel.
- On 7th February 1980 the matter was filed in the Court of Appeal.
- Solicitors of the case are Allen & Overy; Russell, Jones & Walker
- Section 13 (2) and Section 13 (4) is the protasis and apodosis of section 13 of the Trade Union and Labour Relations Acts 1974 and 1976, respectively.
- The Kenneth Jones J. based his opinion on the majority decision of the House of Lords in Express Newspapers Ltd. v. McShane case. He opined the test as a subjective one. Further, he examined it in respect of two viewpoints, first, to decide whether there is trade dispute, and second, to decide whether the belief is honestly held.
- Lord Denning admitted the appeal by citing the reasons, such as the A judgments appeared less legitimate to him due to the absence of ample recognition to the task was not exercising an original discretion with respect to the injunction rather reviewed it. Further, he stated the test to be subjective under section 13 (1) of the 1974 and 1976 Act.
- A passing observation was made by the Lord Denning M.R. in the Judgement. He stated that the test as being of purely subjective in nature to the immunity entitlement test given under section 13 (1) of the Act where it was not clear as the judges thought it to be. They did not focus on the deterrence while exercising discretion.
- According to Lord Diplock, the test states that if an act is “done by a person in contemplation or furtherance of a trade dispute” then he shall be entitled to immunity as a part common law of torts, which is purely subjective. This means the person concerned honestly thought at the time of ding the act that it may be helpful for either of the parties involved in the trade dispute, to achieve the set objectives. Thus, he shall be protected by the section.
- The role of a judge as the law interpreter is to understand the express intention of the makers while interpreting the statute. In the case of Duport Steel, Lord Scarman opined that, if ambiguities arise in parliament-made laws then the judges interpret by ascertaining the express will of the parliament’s enactments, and the field of a statute. Thus, in this field, parliament makes laws, and the judges’ role is to interpret them to apply the law, and not to give a different meaning to it to achieve the judge’s notion of justice.
- The only question that the judges may raise while interpreting is if the meaning of terms in the statute is unclear and ambiguous. In addition to this, the Court is not obligated to interpret the plain meaning of the terms in a statute if the words are unambiguous and plain. They cannot give effect to their own ideas of justice.
The article reflects the media responses to the ruling of R (Miller) v Secretary of State. The author considers the case significant but not from the constitutional point of view. In the Daily Mail, the judges were called the enemy of the people and were severely criticized for their ruling. In addition to this, judges were criticized by prominent politicians and scholars. The critical responses from the politicians and media prompted responses defending the judiciary. The author discussed the nature, history, and impact of such criticism, particularly on the independence of the judiciary. It analyses the response of the Lord Chancellor to the media responses. It states the assumption that criticism of the judiciary is likely to cause a problem is itself problematic and the reason lies deep within the legal profession. The author is of the view that inappropriate media criticism is likely to cause harm to judicial independence only in rare cases and shall not impact the judiciary as a whole. He cited the example of the Miller case, in which the political and media criticism exemplified the case. The response of the legal profession and the judges to the criticism appears to be misguided. Moreover, he opined that the Lord Chancellors of contemporary times are ordinary politicians and they lack constitutional authority, cultural background, and the political motivation to defend against such criticism against the independence of the judiciary. The legal profession and judges to take responsibility for media management even if it is against them. Thus, the article suggests, that judges manage their own media.
In the UK, criticism against judges has a long history. The author notes that it is significant to distinguish between criticism made by the general public, and criticism that emanates from media and politicians. Earlier, An Act was enacted to prevent direct criticism of the judges by the officials of government, which made criticism of the judiciary a rare event. However, since the 1990s, criticism against the judiciary started with a particular first initiated by the media and exemplified by the government, mainly politicians. The author cited headlines of news containing criticism against the judiciary, such as the print media, i.e., the news of the world published headlines such as “judges must learn their place” The criticism was in response to the Sweeney case.[3]
In 2014, Lord Dyson in his speech stated that the legislations or conventions preventing criticism of the government officials or judges no longer exist. The constitutional recognition of conventions and comity does not apply in the case of media. Judicial accountability and criticism are regarded as “two sides of one coin”. However, excess accountability may result in hindering the judicial independence of the courts. This may affect the independent functioning of the judiciary. Also, the independence of the judiciary is a governance tool for the smooth functioning of society as a whole. Thus, the author argues that fair and just criticism of the judiciary leads to accountability, whereas hostile media and political criticism result in harming the independence of the judiciary.
Role of Judiciary in Interpreting Statutes
The case concerns industrial relations, involving the legal issue of interpretation of statutes by the judiciary in the absence of clear meaning to the term mentioned in it. The House of Lords stressed the necessity for the judiciary to interpret the statutes concerning industrial relations in the case. The necessity for interpreting the statutes by the courts involves the unclear meaning of the term. In addition to this, the Court ought to interpret the plain meaning of the terms in a statute if the words are unambiguous and plain.[5]
According to Lord Diplock, the emphasis that the UK constitution is based on the doctrine of separation of power cannot be strongly followed in controversial matters, including bitter parliamentary or public issues. He took a liberal approach to the doctrine. He stated, that Parliament makes laws, the judiciary interprets them”. Courts interpret existing laws made by the parliament, in which the term is vague or unclear then it is the judge’s role to interpret the meaning after considering the Statues. Furthermore, the fact that the British constitution is unwritten does not necessarily mean strict adherence to the power of separation doctrine. The role of the judiciary while interpreting the parliament-made laws is to determine the intention of the makers while drafting the statute. If the word mentioned in the statute has an unambiguous and plain meaning then it is not the role of judge to insert fancied ambiguities as a reason for failing to give plain meaning to it. The consequences of such failure would result in inappropriate, immoral, or even unjust. The House of Lords held that if parliament passes a remedy to fix a flaw in the law that is believed to have injurious consequences, then insertion of provisions to correct such defect is to be done by the parliament and not to be interpreted by the judiciary. Additionally, in controversial matters, in this case, which is the industrial relations, the court allows differences of opinion between Parliament and judiciary only subject to moral, just, and expedient justification. However, the parliament’s opinion shall be considered paramount under the constitution.
The role of a judge as the law interpreter is to understand the express intention of the makers while interpreting the statute. In the opinion of Lord Scarman, if ambiguities arise in parliament-made laws then the judges interpret by ascertaining the express will of the parliament’s enactments, and the field of a statute. Thus, in this field, parliament makes laws, and the judges’ role is to interpret them to apply the law, and not to give a different meaning to it to achieve the judge’s notion of justice.
It is considered to endanger the public confidence in the judiciary as being politically impartial. This is regarded as the most vital requirement in the justice delivery system. And if judges start interpreting the statutes on discretion, then their operation is likely to be injurious to the public interest.
The Supreme Court in the UK is the final appeal court for all matters inv9lving civil and criminal nature. The court also hears matters involving questions relating to the constitution and public interest. The SC was established after the enactment of the 2005 Reform Act, before this the final appellate courts were the House of Lords. Furthermore, the Supreme Court hears matters of public importance and they have wide-ranging implications on the relationship between the public and the government or distinct institutions of the UK constitution. Additionally, it hears cases of ‘devolution issues’ i.e., matters involving disputes relating to the powers of devolved governments. The Supreme Court of the UK has the power to provide final interpretation on the dispute of constitutional or public importance, still, it has comparatively limited powers over higher courts of other countries. The major limitation is its inability to declare primary legislation as void which is enacted by the parliament. This is due to the application of the doctrine of parliamentary sovereignty which states that the law main body i.e., the parliament is entitled to make or unmake the laws without constraint, not even from the highest court of the country.
Importance of Judicial Independence for the Smooth Functioning of Society
In 1998, the UK enacted the HRA to incorporate the rights and freedoms enumerated under the ECHR in the domestic laws. With the enactment of the HRA, UK judges gained new grounds to overturn the decisions involving public authorities. In addition to this, the UK judges were conferred authority to review the matters involving public institutions which were considered in compliance with the rights enumerated in the ECHR. The judiciary received bigger roles after the enactment of the Act. UK judges are now much more powerful than they were before. The judges received powers to adjudicate primary legislation to keep them in line with the ECHR rights and freedoms. The judges can interpret and even amend statutes that contravene the principles of the ECHR convention, and they can issue an ‘incompatibility declaration’. However, the courts do not have the power to declare an Act as unconstitutional and cannot overturn them. Instead of declaring the legislation void, the court declares incompatibility which gives parliament and government another chance to amend the defects in the statute. The judges are not obliged to remedy the changes in offending statutes.
UK judges have comparatively less powerful than other judicial officials in many other countries. Nonetheless, experts argue that with the enactment of the Human Rights Act, the role of judges has become too powerful. The argument states that the power of the courts to declare primary legislation as incompatible with the human rights guaranteed under the HRA (1998) is likely to put the burden on the parliament to frequently amend, modify and alter the laws. Additionally, it would create substantial interference in the smooth functioning of the parliament, thus also conflicting with the doctrine of parliamentary sovereignty. Human Rights Act has involved the judges in the matters of policy and politics. The role of UK judges has substantially increased in the past decades. The judges decide matters based on the merits of the case and the relevant laws. Traditionally, the role of judges was to act as an interpreter and apply the law and not as a lawmaker.
In the case, of Duport Steels v Sirs, the role of Judges is confined to accessing the express intention of the lawmaker, i.e., the parliament while interpreting the concerned statute. Additionally, Lord Diplock stated strict emphasis on the doctrine of separation of power i.e., the parliament makes laws, and the judiciary interprets them, which cannot be made. The role of judges to interpret requires them to adhere to the plain meaning of the words if the statute is unambiguous and plain. Meanwhile, if the word or term enumerated in the statute is vague or unclear then the judges are obligated to interpret it after ascertaining the express intention of the parliament’s enactments and the field in which it was enacted. Furthermore, if there is any defect in the parliament made laws then the parliament itself shall fix the defect, the judiciary shall no role in interpreting them. Judicial interpretation in such situations can result in injuring the public interest. This is particularly true for the cases of controversial nature, such as bitter parliamentary and public controversy. The case noted that the fact that the UK constitution has its basis in the doctrine of separation cannot be strongly emphasized. The role of judges as the interpreter of the law is to first ascertain the intention of the parliament and then give effect to its meaning. According to Lord Scarman, the role of judges is to interpret the laws if any ambiguities arise and not to insert words, or new meanings upon discretion to achieve the idea of justice and fairness. Such interpretation is considered to jeopardize the public confidence in the judiciary as being politically impartial.
Impact of Media and Political Criticism on the Independence of the Judiciary
Judicial independence is considered the most crucial requirement in the justice delivery system. And if judges start interpreting the statutes on discretion, then their operation is likely to be injurious to the public interest. Thus, such interpretation could result in consequences such as immoral, unjust, or inappropriate acts. House of Lords argues the role of judges is to interpret the law and apply them and not give different meanings to them. The role of parliament in law-making is given paramount significance under the constitution. However, the constitution allows a difference of opinion between the judiciary and parliament in the controversial matters involving industrial relations subject to just, expedient and moral justification. Furthermore, Lord Edmund-Davies stated that judges must apply laws as they stand, even if they appear unjust or unreasonable, however, the judiciary may suspect that parliament had other intentions while enacting the said Statute.
The amendment of the Trade Union and Labour Relations Acts 1974 and 1976 shows that legislation may fail to deliver the expected results even after coming into operation and produce injurious outcomes that were not foreseen by the parliament. Apart from hybrid and private bills, parliament does not legislate individual matters. Thus, the case held courts interpret existing laws made by the parliament, in which the term is vague or unclear then it is the judge’s role to interpret the meaning after considering the Statutes. On the contrary, the role of UK judges as discussed by the author Patrick O’Brien in the article, “Enemies of the People: Judges, the media, and the mythic Lord Chancellor has a completely different view. The article talks about the significance of an independent judiciary in ensuring accountability and smooth functioning of the legal system. Additionally, the author stated the independence of the judiciary as a governance tool. The article is based on the review of the responses by the Lord Chancellor to the critical media and political criticism of the judiciary in the R Miller case.
The author opined that the Lord Chancellors of contemporary times are ordinary politicians and they lack constitutional authority, cultural background, and the political motivation to defend against such criticism against the independence of the judiciary. The Article views the role of the judiciary as significant in keeping the other bodies of the government, particularly the legislature in check. Thus, it is suggested by the author that the legal profession and judges take responsibility for their media management even if it is not in their favor. The role of judges is not limited to being mere interpreters of the law rather they are responsible for reviewing the laws to ensure justice and fairness. In contemporary times, an independent judiciary is regarded as a vital feature for enforcing justice and accountability, and fairness in the justice system. Also, the author considers fair criticism essential for judicial accountability referring to them as “two sides of one coin”. However, he believes excess criticism may result in altering judicial independence. Also, the independence of the judiciary is a governance tool for the smooth functioning of society as a whole.
Books
Waters B, ‘Enemies of the People? How Judges Shape Society’ (Bristol University Press 2020), 55
Baumgartner J, and Morris J, Laughing Matters (Routledge 2008)
Lee D, Popular Sovereignty in Early Modern Constitutional Thought (2nd and, 2017)
Popelier P, ‘Preliminary Comments on the Role of Courts as Regulatory Watchdogs’ (2012) 6
Journal Article
Greer S, and Wildhaber L, ‘Revisiting the Debate about ‘Constitutionalising’ The European Court of Human Rights (2012) 12 Human Rights Law Review
Websites
‘Trade Union and Labour Relations Act 1974’ (Legislation.gov.uk, 2022) <https://www.legislation.gov.uk/ukpga/1974/52/enacted> accessed 30 April 2022
Cases
Janvier v Sweeney [1919] 2 KB 316
Duport Steels Ltd and Others v Sirs and Others [1980] 1 W.L.R. 142
[9] R v the Prime Minister [2019] UKSC 41
[10] Greer S, and Wildhaber L, ‘Revisiting the Debate About ‘Constitutionalising’ The European Court Of Human Rights’ (2012) 12 Human Rights Law Review
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