Politics and the Law

I feel very honoured that you’ve invited me as a non-lawyer to give this lecture about the relationship between the executive and the courts. My career in the civil service coincided with the development of judicial review over the years or, as others might say, the growth of judicial activism.

I joined HM Treasury in 1961 and there was no doubt about what my job was. It was to do my utmost to stop other departments spending taxpayers’ money. As it happened, there fell within my area of responsibility the public expenditure consequences of a case which the Burma Oil Company brought against the government, which turned into a very significant development of judicial review.

The Burma Oil Company, later known as BP, had brought a case against the government for compensation for the destruction of their oil fields undertaken in Burma during World War Two to prevent the oil fields falling into the hands of Japanese. When this case was brought in the 1960s, the government believed that it could defend itself by relying on the doctrine of Crown immunity.

The essence of this was that proceedings could not be brought against the Crown for actions taken under the Royal Prerogative for the defence of the realm in wartime. The case went to the House of Lords who decided by a majority that because the damage had been undertaken in defence of the public, the owners were entitled to compensation from the public purse. The public expenditure repercussions of this decision were potentially enormous.

The government got out of the liability by passing, with retrospective effect, the War Damage Act 1965. The courts had spoken, but the executive, by parliamentary action, overruled the courts. This was constitutionally legitimate, but it was highly controversial. Nevertheless, the principle that actions taken by the government under the Royal Prerogative could be challenged in the courts was established.

As a junior official in the Treasury, I had a worm’s eye view of this episode.

Fast-forward 20 years to 1984, and I was Principal Private Secretary to the Prime Minister, Margaret Thatcher. It was in this capacity that my second brush with judicial intervention took place. Following industrial action by the Civil Service trade unions, Margaret Thatcher decided that the staff of GCHQ, the government’s intelligence listening centre, should be banned from trade union membership, so that they could not be called out on civil service strikes. In this respect, they were to be put in the same position as the other intelligence agencies and the armed services. The ban was imposed by an Order in Council under the Royal Prerogative – requiring no parliamentary procedure.

The Council of Civil Service Unions brought a judicial review of the order. At the first instance, Lord Justice Glidewell ruled that the government’s processes had been defective, because the staff of GCHQ should have been consulted first, and therefore, the Order in Council was invalid. The Court of Appeal reversed this decision, on the grounds that judicial review could not be used to challenge the use of the Royal Prerogative – rather going against the decision that had been made in the Burma Oil Case. The House of Lords decided that an order made under the Royal Prerogative could be subject to judicial review, but that some areas should be exempt – and one such area was national security. On these grounds, the House of Lords concluded that this particular order should be exempt from judicial review. So, the government won its case.

Fast-forward to modern times. Administrative law has now evolved to a point where every civil servant needs to familiarise himself or herself with a government publication called The Judge Over Your Shoulder. The definition of administrative law in the introduction runs as follows: “Decisions by public bodies may be challenged through the court procedure known as judicial review. A claim for judicial review means a claim to review the lawfulness of an enactment or decision, action or failure to act in relation to the exercise of a public function.”

The courts must be careful. It would be wrong for judges to usurp the role of politicians, or trespass on ground occupied by parliament. Careful criteria have therefore had to be developed to draw the boundary between the executive’s role and the court’s role.

We need to ask how it is that we’ve reached a situation in which it has been become acceptable to give judges – who are not elected – the power to nullify decisions of public bodies who have been democratically elected, including the government itself. Decisions affecting the public made under these powers have to be monitored, and the public safeguarded from mistakes or errors of procedure. Nevertheless, the courts must be careful. It would be wrong for judges to usurp the role of politicians, or trespass on ground occupied by parliament. Careful criteria have therefore had to be developed to draw the boundary between the executive’s role and the court’s role. The court’s role relates to the processes by which a decision is taken, not the merits of the decision itself.

In order to protect themselves against judicial intervention, staff of public bodies have to test their decisions against a demanding set of criteria, set out in The Judge Over Your Shoulder. I think that these criteria contribute to a fair and well-governed society. So, should we conclude that with the availability of judicial review, all is well in our governance arrangements? Not entirely. In the foreword to The Judge Over Your Shoulder, Susanna McGibbon, the current head of the government legal service says: “A rule of law requires a balance of power between the government, parliament and the judiciary.”

The danger is that in that balance, the government – the executive – is overweight. The history of our nation’s governance is the balance between rulers and the ruled, between the government and the public. Over the last 300 years or so, the executive has devised various ways of getting its way in parliament. Political parties were formed to establish majorities. Devices were developed to keep members of parties in line, the whipping system, patronage, selection and deselection of party candidates, and much else.

Even so, governments have to get powers from parliament, and this imposes a restraint on them. They have to make their case to parliament, and even when the governing body has a majority, they have to watch their step. In recent years, the executive has devised new ways to prevent parliament from putting an effective brake on the government’s freedom of action. Governments today increasingly introduce legislation in skeleton form, defining powers in the broadest terms, with details set out in statutory instruments.

Parliament is debarred from amending these statutory instruments – unlike legislation – and by convention, does not defeat them. Of the thousands and thousands of statutory instruments each year, the House of Commons has not rejected one since 1979. And the House of Lords has rejected only six since 1950. The consequence of this is that the executive obtains powers which parliament does not effectively scrutinise or control.

An example currently before the House of Lords is the government’s Retained European Union Law (Revocation and Reform) Bill. In this Bill, the government is seeking powers to abolish or amend laws inherited from our membership of the European Union without any effective parliamentary control. This sort of thing previously happened when King Henry VIII sought to make law by proclamation, and the parliament at the time stepped in to prevent him from doing so.

So, in terms of the balance between government, parliament and the judiciary, on which the rule of law depends, it seems to me that parliament is now underweight in this country. I submit that this is serious. We only have to look around the world to consider the lessons of European history to remind ourselves of what can happen when autocratic regimes can dominate parliament so that they can enact at will whatever laws they want.

I’m not saying we’re at that point now. Even so, we cannot be too relaxed about the executive finding ways to ride roughshod over parliament. But you may say, “Why doesn’t parliament use the powers which it has? Statutory instruments have to be laid before parliament and can be voted on. Why doesn’t parliament exercise control by voting down the statutory instruments it doesn’t like?”

The answer is that the House of Lords does not vote down statutory instruments except in the most extreme circumstances, because as the non-elected House, it does not feel that it can reject the measures of the executive single-handedly.

But the reason why the House of Commons does not do so is more discreditable. The opposition parties reckon that, sooner or later, they will be the government and then they will not want their own statutory instruments voted down. This is not a story which reflects well on our parliament. It follows that if we cannot rely on parliament to restrain the executive and their excesses, we have to look at the courts to do so.

Was the Supreme Court right to intervene and annul the use of the prerogative to prorogue parliament in 2019? My answer is yes. In the absence of any colourable justification, the executive’s suspension of parliament at a crucial moment in the Brexit negotiations was a flagrant abuse of prerogative power. Similarly, the government’s intervention in 2017 to give notice of our withdrawal from the EU – thus effectively reversing, without any parliamentary process, the legislation which took us into the EEC in 1972 – was similarly found to have been an abuse of power.

The government did not like these two interventions by the Supreme Court. Subsequent to the 2019 election, the government carried forward its campaign to clip the wings of the courts by establishing a study of judicial review, under an independent panel chaired by a Conservative peer, Lord Faulks. The outcome was a disappointment to the government. It recommended only two, fairly technical, changes to judicial review.

I end by quoting the final observation of the Faulks Review panel: “Our view is that the government and parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action. Politicians should in turn afford the judiciary the respect which is undoubtedly due when it exercises those powers.” I say “Hear, hear” to that.

For the full video recording: innertemple.org.uk/politicsandthelaw

The Rt Hon The Lord Butler of Brockwell KG GCB CVO

Master, University College, Oxford, 1998–2008;

Secretary of the Cabinet and Head of the Home Civil Service, 1988–98