The government manifesto on changing the reach of courts is in the press again. But some things seem off, so here are some clarifications.

First published in January 2020.

Robert Buckland, asked by Adam Boulton on Sky News whether the Government was planning to curtail the powers of the Supreme Court as a revenge for it rulling that suspending Parliament last September was unlawful, replied:

Passage of page 48 of the 2019 Conservative manifesto implying the Tories plan to curtail the powers of the Supreme Court. / Conservatives

“I don’t think there is any question of revenge or hitting back... This is all about taking a calm and considered approach to what has been a very febrile time in our constitutional history. I think it would be a missed opportunity for us as a government not to look carefully at the issues and to get that outside expert opinion as well that can help inform policy and allow us to do a bit of constitutional plumbing in a way that I think is in the best traditions of Conservative governments.

“I don’t think the judges choose the cases that they get before them. What I am clear about, and I think this view is shared by many senior judges and retired judges, is that we do not want a constitutional court in the UK such as we have in the US. A constitutional court means that that is a court that by its own definition is going to be involved in politics, and that of course means in the US congressional hearings to appoint judges. That is not something that I favour at all.”

Robert Buckland on Sky News, 16 January 2020.

The problem of courts resolving many issues (because we drop them on the courts), is a real one, but the conceptualisation is problematic, as is the way the US is presented. Let’s start off...

The US does not have a constitutional court. It has a supreme court. Germany and France have a constitutional court. What’s the difference? A constitutional court is dedicated to matters of constitutional law. The US Supreme Court is not.

How does that work? The US has a system of “diffuse” constitutional review. Every court is entitled, nay tasked to review the constitutionality of laws. That’s the heritage of that most famous US case Marbury v. Madison. That’s different from a constitutional court model – take Germany.

In Germany if a judge thinks a law is not constitutional that judge stays the proceeding and passes the question of its constitutionality on to the Constitutional Court. ONLY the Constitutional Court can review the law for its constitutionality.

Let’s move on to “courts get involved in politics”. This raises an important question: what is the separating line of law and politics? I maintain that this line is difficult to fine.

Take the US. In theory, courts stay out of politics under the “political question doctrine”. Political questions are, in theory, not justiciable (Baker v. Carr). How do you know that it’s a political question? For example, a lack of judicial standards or, my favourite, if the constitution commits the question to another branch of government. The problem? The US Constitution does not really do that sort of thing.

And if you think about it: what ARE the questions that a court should stay out of? What is a political question?

The UK system has chosen that legislative acts are not reviewable. That is, if you want, an institutional answer to that question. It seems to me that going beyond that would create far more problems than it would resolve.

(Yup, we can discuss some details, of course).

Tweets posted on 16 January 2020 by @hhesterm.


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[This piece was first published as a Twitter thread and turned into the above article on 16 January 2020 with the purpose of reaching a larger audience. It has been minorly edited and corrected. | The author of the tweets writes in a personal capacity.]

(Cover: Gif of Robert Buckland on Sky News.)