WEBINAR 6: EUROPE (OVERVIEW) - Populism, Executive Power and ‘Constitutional Impatience’: Courts as Institutional Decelerators in the United Kingdom
Raphaël GIRARD
20 November 2020
Introduction
Contemporary populism does not operate in a vacuum; it emerges and functions in the context of what political and social theorists have called the “social acceleration of time.” As liberal institutions – particularly legislatures and courts – appear ill-equipped to adapt to this trend, populism manifests itself as a powerful critique of liberal democracy: it depicts the latter as distant, lethargic, opaque and elite-driven. Taking advantage of the spatiotemporal contours of liberal democracy, populism puts forward an alternative conception of democratic representation: one that not only aims to reduce the distance between gouvernants and gouvernés, but that is also, as populists would indirectly claim, better suited to the contemporary imperatives of temporal efficiency and rapidity. Indeed, populists are typically impatient with intermediaries, institutions (including legislatures and courts) and liberal-democratic procedures, which are seen as illegitimately thwarting the direct expression of the authentic “will of the people.”
For that reason, populists are often eager to invoke executive prerogatives, from the executive prerogative in its US meaning to the Royal Prerogative in the UK context. As William E. Scheuerman notes, this is often done through a “perversion of the traditional temporal justification for executive-centered emergency government.” Initially designed to be used in truly extraordinary situations of emergency, Lockean-type, executive-centered emergency powers have been used in less-than-extraordinary situations. For instance, Donald Trump, after declaring a national emergency in 2019 in the context of the “border crisis” between the US and Mexico, quickly conceded that it was not temporally justified: “I didn’t need to do this, but I’d rather do it much faster. I just want to get it done faster, that’s all.” In the UK, while no emergency powers were invoked in the context of Brexit, prominent politicians from Boris Johnson to Nigel Farage have nonetheless invoked on multiple occasions the urgency of “getting Brexit done.” In fact, it was arguably the key element of the Conservative manifesto in the 2019 general election. In these politicians’ view, “artificial” delays to the implementation of the “will of the people,” provoked either by courts (cf. Miller no. 1) or Parliament, were democratically unjustified.
Through its distrust and impatience vis-à-vis liberal institutions and other intermediaries, populism acts as a catalyst for the acceleration of political time and democratic processes – and for the shrinking of the distance between rulers and the ruled. In so doing, it favours proximity, simultaneity, and immediacy – the result of which is a form of what I call “constitutional impatience,” which builds upon what Ming-Sung Kuo labels as “instantaneous democracy.” Yet, it is precisely in this context that courts can play the role of institutional decelerators. As Kuo notes, judicial proceedings have been noted – and criticized – for their slow pace, which, perhaps counterintuitively, “can be a structural asset of the multistage process of constitutional governance in its pushback against new populism.” In this blog post, I argue that courts can act – and have indeed successfully acted – as judicial decelerators in response to populist impatience and executive aggrandizement. I make this brief argument by reference to the Miller (no. 1) and Miller (no. 2) UK Supreme Court judgments.
The UK Supreme Court as Judicial Decelerator
First, the UK Supreme Court successfully acted as judicial decelerator in the Miller (no. 1) case. In the face of an impatient executive galvanized by the result of the 2016 Brexit referendum and who wanted to “exercise political power unilaterally which would fundamentally change the constitutional arrangements of the UK,” the Court’s intervention effectively slowed down the executive’s pace of action. The Court ruled that the royal prerogative could not be used by ministers to trigger Article 50 of the Treaty on European Union (TEU) and that the prior authority of an Act of Parliament was required: “We cannot accept that a major change to UK constitutional arrangements can be achieved by ministers alone; it must be effected in the only way that the UK constitution recognises, namely by Parliamentary legislation.” It should be noted that the Court did not block the executive, as Parliament ultimately voted on February 1st, 2017 in support of a bill that gave then-Prime Minister Theresa May the power to invoke Article 50 TEU; all the Court did, in that case, was slow down the executive’s course of action.
The institutional role of courts as “judicial decelerators” was also made explicit in the Miller (no. 2)/Cherry case, in which the Supreme Court held that Prime Minister Boris Johnson’s decision in August 2019 to prorogue Parliament in was unlawful insofar as the prorogation had the effect of “frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive.” The Supreme Court, wary of potential misuses of powers by the executive, effectively created what Tarunabh Khaitan calls an “effects-based” (proportionality) test, defined as follows: “Governmental action that has the effect of frustrating, preventing, or substantially undermining the ability of constitutional actors to discharge their constitutional powers, duties, or functions shall be unlawful, unless the government can show that such action was a proportionate means of achieving a legitimate objective.” In doing so, the Supreme Court confirmed its role as a bulwark against executive aggrandizement and its ability to slow down the pace of executive action.
It is important to point out, however, as Kuo does, that “what the court is expected to do under the guidance of judicial deceleration is not to set aside the contested policy or law but rather to make room for the learning function of constitutional democracy to play out and the rearticulation of politics by putting brakes on the populist feeling-driven decision.” In both the Miller (no. 1) and Miller (no. 2)/Cherry judgments, the Court did not go as far as to second-guess the desirability of the government’s policy, nor of the outcome of the 2016 Brexit referendum. It also did not enquire into the motives or purposes of governmental action. All it did was slow down the political time in the face of “constitutional impatience” and populist pressures, and to contribute to the restoration of the disrupted temporal contours of liberal democracy.
The Limits of Judicial Deceleration
That said, courts are not necessarily a panacea against “constitutional impatience,” at least not in the UK context. Their role and influence are dependent upon at least three factors, namely (1) the public reception of their judgments; (2) the (overwhelming) forces of politics; and (3) their institutional independence.
First, as is well known, the rendering of the Miller (no. 1) judgment sparked populist outrage in the UK tabloids, with the Daily Mail going as far as to label judges who sided against the government as “enemies of the people.” Less than three years later, the Miller (no. 2)/Cherry decision was also received with indirect personal attacks on judges, particularly against judges of the Scottish Court of Session before the decision reached the Supreme Court. But, and perhaps more importantly, the judgment also led to charges on the institutional role and influence of courts. Jacob Rees-Mogg branded the decision a “constitutional coup” by the Supreme Court. A Conservative Member of Parliament even went as far as make a call for the Supreme Court to be abolished entirely. In a speech to the Bruges Group in September 2019, Martin Howe QC, the Charmain of Lawyers for Britain, also criticized the Supreme Court judgment and called for the replacement of the Supreme Court with a “newer low key and less activist court of final appeal.”
Second, and in the same vein, the role and influence of courts is also dependent on the (overwhelming) forces of politics. In the context of frustrations caused by Parliament’s inability (or unwillingness) to pass the government’s Brexit deal in the period leading up to the 2019 general election, the Conservative party vowed, in its 2019 Election Manifesto, to “to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people.” It also promised to “set up a Constitution, Democracy & Rights Commission that will examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates.” It remains to be seen what the findings and proposals of the Commission (which, at the time of writing, was still accepting evidence) will be, and what the government will choose to do, but it is hard to see this as something other than an attempt to “halt the current direction of constitutional travel and reinstate the executive at the centre of the Constitution.” The appointment of Suella Braverman as Attorney General, on February 13th, 2020, is an indication that the government is serious in that regard. Indeed, just two weeks before her appointment, Braverman criticized the “chronic and steady encroachment by the judges” and accused “a small number of unelected, unaccountable judges” of having too much influence in the determination of wider public policy. Claiming that British democracy cannot be said to be “representative” anymore, Braverman added that “Parliament’s legitimacy is unrivalled and the reason why we must take back control, not just from the EU, but from the judiciary.”
Third, and in relation to the previous point, the efficiency and success of courts in slowing down the populist acceleration of political time and processes is contingent upon the institutional independence of courts. Besieged or captured courts are much less likely to act as institutional decelerators; on the contrary, they can transform into allies or even into instruments of legitimation for the populist regime, helping the latter to consolidate power while maintaining a façade of democracy, as the recent examples of Hungary (since 2010), Turkey (since 2010), Poland (since 2015), Ecuador (2008-2017) and elsewhere illustrate.
Conclusion
Populism is not, of course, a monolithic phenomenon; it can assume different forms – which can, in turn, lead to different relationships between the executive, the legislative and the judiciary. Contrary to Hungary, Turkey, Poland, Ecuador and elsewhere, no attempt has been made by the executive to manipulate, pack or capture the judiciary in the United Kingdom. In that sense, the relationship between government and the judiciary in Britain may be more accurately described as one of “defiance.” Nevertheless, in light of the abovementioned “constitutional impatience” of populism, the judicial responses to executive power grabs in the Miller (no. 1) and Miller (no. 2) cases illustrate that courts can effectively act as judicial decelerators and as bulwarks against populist, executive aggrandizement. Yet, the reception of these two cases, as well as the 2019 Conservative Manifesto’s pledge “to look at the broader aspects of [the UK] constitution: the relationship between the Government, Parliament and the courts; [and] the functioning of the Royal Prerogative,” are both reminders that the courts’ position in the UK constitutional order (and its relationship vis-à-vis the two other branches of government) is, at best, a precarious one.
Raphaël Girard is a PhD Candidate in Law and Graduate Teaching Assistant in Public Law at the London School of Economics and Political Science (LSE). His doctoral research project, entitled “Populism, Law and Spatiotemporality: The Role of Courts in an Age of Constitutional Impatience,” explores the relationship between populism, constitutionalism and the judiciary through the prism of space and time. His research is funded by an LSE PhD Studentship (2017-2021). Raphaël holds an LLM (with distinction) from the LSE and dual degrees in civil law and common law (BCL and LLB) from McGill University. He is also a member of the Quebec Bar since 2016..