The Executive and the Courts in the Constitution

The Executive is the branch of government that runs schools and hospitals and issues passports. The judiciary and the legislature are far simpler than the executive in form and function. The work of a court centres on a specific, binary task: passing judgment on a claim for an order or a declaration. The work of a legislature centres on a specific, binary task: passing judgment on a proposal to enact a bill. We only have branches because the judiciary and the legislature need to be instituted to carry out those two specific, highly formalised governmental roles that could not be exercised responsibly by what we call ‘the executive’.

The executive is a complex proliferation of complex agencies, and its work has no characteristic form. Its function is to govern, subject to the exclusive allocation to the legislature and judiciary of their crucial, specific governmental powers and responsibilities. It is no accident that we call the leadership of the executive ‘the government’.

In Whitehall and in the devolved executives, that leadership gets its power from support in the legislature. It is a popular idea that the government has a constitutionally dangerous sway over parliament. But let’s remember the downfall of Boris Johnson and the downfall of Liz Truss – two lurid reminders that the head of government is utterly dependent on MPs, and is at the mercy not just of their actions, but even of their sensibilities. The representatives of the people have a standing opportunity to make a Prime Minister vanish. It does not take a vote of no confidence. If the Prime Minister doesn’t keep a crucial majority of the majority MPs not-too-unhappy, Cabinet ministers will start resigning, and the removals van will roll up Downing Street.

That mechanism does not guarantee good government, but it is our constitution’s primary support for responsible government. The individual with the remarkable constitutional power to construct a government will vanish, unless he or she responds to MPs’ opinions and tolerances.

Support in the House of Commons and elections to the House of Commons are the primary basis for responsible executive government not merely because they are democratic, but also because they can respond to the open-ended array of considerations relevant to good executive governance in its phenomenal diversity. The House of Commons and the voters don’t give reasons. They can act on any grounds. And the House of Commons does not even need to act: in its relationship with the executive it mainly functions not as an actor, but as a forum. Ministers can be held accountable in the House of Commons and by the voters for their attitudes and demeanour and personalities.

Judicialisation and overjudicialisation of executive governance

Courts have no such open-ended authority over the executive. They are neither above nor below the House of Commons; their role is specifically juridical. And it should be carried out without judicialising aspects of executive governance for which the government should be accountable only to the House of Commons.

For a paradigm of the properly juridical ways in which a court might impose responsible government on the executive, think of habeas corpus, along with the array of statutory processes and remedies regulating detention in policing, immigration, the operation of prisons, probation, mental health, and so on. Those processes are properly juridical not simply because of the radical impact of detention on the individual, but because of the courts’ capacity to pass judgment on the effect of the open, prospective, general standards that are needed to justify and to regulate the act of detention, and their capacity to determine the facts on which the application of those standards will turn. And the court is a good forum for those processes because its bipolar, adversarial process puts the detainee on the very same level as the authorities of the state. None of that is reliably on offer in the House of Commons. The government can be held to account in the House of Commons for anything whatsoever, including for unlawful detention. But all our institutions should play to their strengths, and the administration of justice according to law at the suit of the individual is not the forte of the House of Commons.

Now for a paradigm of aspects of governance that are not for judges: suppose that a Prime Minister decided to dismiss the Home Secretary without giving her a hearing – suppose that some scandal made the Prime Minister think that it was against the public interest for the Home Secretary to continue in her job (as the Brighton Watch Committee thought that it was against the public interest in good policing for Charles Ridge to continue in his job as Chief of Police, in Ridge v Baldwin [1964] AC 40). If the Prime Minister sacked the Home Secretary without a hearing, the courts ought to entertain no proceedings seeking a remedy. Some of the most important things that the Prime Minister does are not unlawful even if they are procedurally unfair. Or suppose the decision is so unreasonable that no reasonable Prime Minister would do it. Giving permission for judicial review would be an overjudicialisation of government. Even a manifest injustice would not be a matter for the court.

Some of the most important things that the Prime Minister does are not unlawful even if they are procedurally unfair.

Litigation over the Ministerial Code, it seems to me, offers another paradigm of overjudicialisation of government – and this one is actual rather than hypothetical. The Code is a statement by successive Prime Ministers since Tony Blair of their expectations as to “the highest standards of propriety” for ministers. I think that there is nothing that the Prime Minister could say in that statement that would be properly a matter for a court of law unless it were unlawful for him to say it – as it would be if he defamed some person, or if he said something that amounted to encouraging the commission of a criminal offence under the Serious Crime Act 2007 (this means, by the way, that no omission to say anything in the Code could conceivably be a matter for a court). So, it was right that permission for judicial review was denied in R (Gulf Centre for Human Rights) v The Prime Minister [2018] EWCA Civ 1855 – a claim that the Prime Minister had acted unlawfully by changing a passage in the Code referring to ministers’ duty “…to comply with the law including international law and treaty obligations”, so that it just read “…to comply with the law.” But the Court denied permission on the ground that the revision made no change in substance. With respect, the courts ought to refuse to review what the Prime Minister says in the Code at all, unless the claimant has an arguable case that the law forbids the Prime Minister to say it.

Our judges have held that government action is unlawful if it is incompatible with the judges’ interpretation of the defendant’s policy statements (Mandalia v Home Secretary [2015] UKSC 59 [31]); with respect, it seems to me that this doctrine has been overextended extravagantly in its application to the Ministerial Code. The Administrative Court assumed the authority in R (FDA) v Prime Minister [2021] EWHC 3279 (Admin) to decide what counts as bullying for the purposes of the Code. Counsel for the FDA stated quite correctly that judges are capable of construing an anti-bullying code (as they often do), and that the Prime Minister is not “entitled to give the words used any meaning he chose” [25]. Neither of those truths gives the first shadow of a reason why the claim raised any matter for a court.

The Court dismissed the claim on the ground that the Prime Minister had not misinterpreted the Code. But suppose that the Prime Minister had acted on a clear misinterpretation of the Ministerial Code, or in blatant disregard of it. Given the nature and purpose of the Code, there would be no reason for a court even to give permission for judicial review in such a case. The Code’s nature and purpose is to express the Prime Minister’s expectations and commitments concerning matters that are not for courts to regulate.

All patently groundless claims for judicial review, I suppose, belong among our paradigms of overjudicialisation: asking the Court, eg, to quash the decision of the Foreign Secretary to ratify the Maastricht Treaty (R v Foreign Secretary, ex p Rees-Mogg [1994] QB 552), or to declare that the Prime Minister had unlawfully failed to answer questions from an MP (R (Hemming) v Prime Minister [2006] EWHC 2831), or to cancel Brexit because of irregularities in the referendum campaign (R (Wilson) v Prime Minister [2019] EWCA Civ 304). Since the claimants in such cases get to argue the substance of their claims in the application for permission to seek judicial review, the process can provide a very attractive public forum for pursuing campaigns against the government, even when the campaigners have no prospect of being given permission to pursue them.

Perhaps there is something worthwhile in the provision of that forum for legally lost causes? It is an irony of judicial review today: the judges pay tribute to the rule of law by giving a straight-faced, serious-minded, judicial assessment of claims that are not matters for judges.

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

Professor Timothy Endicott

Vinerian Professor of English Law, University of Oxford Academic Master of the Bench