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Mishcon Academy: Digital Sessions – In conversation with Joshua Rozenberg QC (hon)

Posted on 20 July 2020

Mishcon Academy: Digital Sessions are a series of online events, videos and podcasts looking at the biggest issues faced by businesses and individuals today.

James Libson, Managing Partner, talked to Joshua about his latest book titled "Enemies of the People?: How Judges Shape Society". This was discussed in the context of both Miller cases which James led and other high profile cases. The central premise of the book is that the judiciary are not enemies of the people, addressing the commentators who argue that judges have overreached themselves.

This live session was held on 8 July 2020.

James Libson:  Hello everyone, I hope everyone can hear me.

It's a great pleasure and privilege to welcome you to this Mishcon Academy Digital Session.  Let me introduce properly Joshua Rosenberg.  He is, as is described in one of the reviews for this book, a preeminent legal correspondent and Britain's foremost legal journalist.  Joshua is a full-time journalist and was appointed a QC an Honorary QC in 2016.  After taking a law degree at Oxford, he trained as a solicitor and is an Honorary Master of the Bench at Grays Inn and a non-executive board member of The Law Commission. 

He has a long and distinguished legal journalist career working for The Daily Telegraph, The Guardian and the BBC and has presented the BBC Law and Action Programme for very many years. 

Let me just with an introductory question, understand why you came to write this book?  What motivated you to write this book?

Joshua Rozenberg QC: Well, I was approached by a publisher by Bristol University Press and they have a series of books on social issues and they wanted to expand their coverage of law and they wanted a law book that dealt with social issues.  That came at the same time, really, as your client, Gina Miller challenging the arrangements under which the UK could give notice of its intention to leave the EU and I thought that putting all those together, a book about how Judges make law.  So it's a way of just explaining what the judges do, how they do it and under what framework they operate.

James Libson:  I would like to start actually with the first Gina Miller case if I may.  I was surprised at the time that lots of people that spoke to me before that case was heard were saying to me, you're not going to win James and they weren't talking to me about the legal merits of the case but they were talking about the politics of the case.

Joshua Rozenberg QC:  I think the Judges are quite sensitive to public opinion.  They may well go against it but when they do, they think about it.  I thought that, they might think that, they would be depicted as indeed they were, as blocking Brexit and that they might therefore not grant judicial review but they did.  You know, the interesting thing about judicial review is however often the Judges say that judicial review is not about the merits, it's a process they're looking at whether ministers acted within their powers.  People think that at the back of it there is some political thought.  There is some political concern about what this would mean.

James Libson:  Let's get straight to that then.  That's sort of at the centre of the book.  That the balance between a parliamentary sovereignty and intervention of the judiciary.  There was a point in time when Liz Trust failed to come to the defence of the judiciary that you talk about, where we have the famous Daily Mail headline and you also had throughout the same period, the very organised persuasive campaign, if you will of policy exchange through its judicial power project that feeds into this debate.  Where do you think we are in that see sawing of the issues?

Joshua Rozenberg QC:  The book had to be finished by last August and we just were able to squeeze in Miller two into the proofs.  But what I didn't know and what I didn't have time to include was the reference in the Conservative Party Manifesto in December of last year.  The Conservative Party said it would ensure that judicial review is not abused to conduct politics by another means or to create needless delays.  He is saying that the Judges are behaving like politicians and here are the politicians and the Conservative Manifesto saying we're going to put an end to that.  

James Libson:  In that discourse where we started, as I said, with The Daily Mail headline and the failure of Liz Trust then to stand up and defend.  There still seems to be quite a lot of offstage criticism and before she became Attorney General, Sue Ellen (Suella) Braverman for example, wrote about the two Miller cases and described them as the latest examples of a chronic and steady encroachment by the Judges.  That powers repatriated from the EU would mean precious little if our Courts continued to act as political decision maker, pronouncing on what the law ought to be in supplanting Parliament, etc.  Now that that was before she was appointed but I think the mood still exists.

Joshua Rozenberg QC:  It certainly does express a feeling within government.  On the other hand, I mean, look at it a bit more closely.  This week, the High Court Judge, Mr Justice Lewis, refused permission to an enterprising businessman who wanted to challenge the Corona Virus Regulations.  This isn't believed throughout the case.  He didn't even allow this man Simon Dolan to bring the case, despite the fact that a lot of people are uncomfortable with the lock down regulations.  He gave various reasons for that which are published in his Judgement and you can boil them down to saying that the government did not exceed its powers and that however extraordinary the constraints were they were proportionate and within the government's power.  You might say, within the government's duty.  So there was no problem there. 

There has been an appeal brought by Chris Packham about the high speed rail link HS2 and he was refused permission in the Divisional Court earlier this year.  The Judge took the view that the whole high speed rail link had been first of all approved by Parliament by way of legislation and secondly, the subject of enquiries and that it wasn't necessarily in the public interest and the Courts would block it just because certain individuals, including Chris Packham, were against it.  So I don't think that the Courts are thwarting the government's ability to operate.

James Libson:  I'm going to turn to some questions that have come in and Ursula Smart has asked about some of the cases you've written about.  She talks about the conjoined twins' case.  You wrote quite movingly about those cases.  The cases that involves such difficult decisions for anyone involved in them.  Even the people bringing the cases or defending the cases, particularly people having to make decisions about cases.

Joshua Rozenberg QC:  The conjoined twins' case was one which was particularly difficult.  Particularly difficult for Alan Ward or Justice Ward as he then was.  To summarise his decision.  A decision of the Court you had to cause the death of one conjoined twin in order to save the life of the other.  You had Roman Catholic parents from Malta who wanted to leave things to the Almighty.  If the Courts had not intervened both twins would have died.  As it was, one died inevitably and the other survived.   

The other case you may be thinking of is the Charlie Guard case.  Charlie Guard was also a child who had no prospect of life and the question there was what the Courts should do.  The Courts effectively authorised now the withdrawal of life support and of course, the child died.  This was against the wishes of the parents.  Naturally, but they chose publicity and the case grew into an international concern. The Pope got involved, people from the United States got involved, completely misunderstood what the case was about.  So there was a huge misunderstanding of the role of the Courts, huge misunderstanding of how Judges worked and huge misunderstanding about what was in the child's best interest, which is obviously what the Court was seeking to establish and deal with.

James Libson:  The results of the Gina Miller case, especially the prorogation case, were largely unexpected in Parliament and sent out shock waves in the political world. Do you think the case has made a significant adjustment in the balance between the courts and the executive or has it merely made ministers a little more careful?

Joshua Rozenberg QC:  I think that the circumstances of the end of the last year showed the Constitution becoming unbalanced by what was going on in the House of Commons by the government losing control and I see what the Courts did as restoring the balance, resetting the balance.  Yes, it was a tremendous shock but on the other hand, it does show how, in an unwritten or at least uncodified constitution how flexible it is.  You know, the Courts say that Parliament was not lawfully prorogued, and therefore, as a matter of law, it's still sitting and it returns the next day and they cross out prorogued in their records and put adjourned and everything carries on, despite the fact that you know you're entitled to claim this is a great victory.

It was merely judicial review acting as it should.  It was merely the Courts saying that powers that were exercised by ministers had to be exercised within limits and adjourning or suspending Parliament for five weeks was unlawful.  It's as simple as that.

James Libson:  The other take on it was that it was ridiculous.  The fact that our constitution is so uncertain, illustrates actually the weakness in the system rather than strength of the system.

Joshua Rozenberg QC:  It's a system which depends on balance.  Balance of powers between the executive and the Legislature and the judiciary between the government, between parliament and the judges.  But in the end and this is what links the two Miller cases.  This was the Courts restoring power to Parliament.  So this was the Courts shifting power from one side of the constitution to the other and they were doing so because they believed that that's where the power should lie and if you look at it like that, power should lie in Parliament and ultimately in the House of Commons.  I think that's how it should be.

James Libson:  I worry sometimes that our constitution, is too distant from the people, the general public and also a failure of the people who engage in the constitution, are really to have made it accessible in a way that it should be. 

Joshua Rozenberg QC:  You know, some people say it would be nice to write the constitution down.  Now I think that first of all, impossible and secondly, undesirable because I think the flexibility of our unwritten constitution allows to shift the powers in one direction if they go too far.  The judges could do more.

One of my complaints about how the Divisional Court High Court handled Miller one, is they didn't explain in the Judgement or the summary and all that was necessary for the case to be dealt with was for Parliament to pass legislation.  Now, if the Judges had explained that clearly, it might not have stopped the headlines but it might at least have helped people to understand that this wasn't the Judges blocking Brexit.  This was the Judges saying that legislation was required and as a matter of principle and legislation could be got because this was government policy and the government had a majority in Parliament.

James Libson:  Some very interesting questions on exactly that thing.  The problem with the Gina Miller case and the Peruvian parliament that is widely perceived that Lady Hale and her colleagues had allowed their own political prejudices to intrude.  The point is, public faith in the courts has been gravely shaken by Lady Hale's findings in the Miller case and this cannot be helpful in a democracy.

Joshua Rozenberg QC:  Yes, it's quite true that Lady Hale has commented on some of her decided cases rather surprisingly. Is it political? Well, they have strong views, but I don't think that the Judges are party political. One of the things I quote in the book, is the fact that the Judges were rather pleased about the fact that the newspapers in Miller one who tried to predict how the judges would decide the case according to the perceived use on Brexit got it completely wrong.

James Libson:  What role if any does diversity within the judiciary play in the way it deals with some of these issues? Does Joshua think that a more diverse judiciary would tackle or decide some of these cases differently?

Joshua Rozenberg QC:  If you say, should the Courts reflect society, yes, of course they should.  Now I'm totally in favour of enabling people to prove their merit from whatever background they come from.  That's absolutely excellent.  But if you say to me, should we have all women shortlists, for example.  Then I would say no because I will say that appointment to the judiciary must be on merit and if you ever lose that principle, then you are damaging the status of minorities who have made it to judiciary.   

There is one exception to that which is a provision that says if you have two people of equal merit, then you can select the person from a minority and the justification for that is that person probably had to work harder in order to get to where they are.

James Libson:  In terms of just looking at the judiciary going forward and the legal system going forward.  What would be your three top tips for modernisation and further raising of the esteem of the judiciary in our country?

Joshua Rozenberg QC:  But I think carry on as they are, explain what they're doing and don't sacrifice anything.  Keep keep, you know, independent.  Don't worry about what people like me say, but keep doing the day to day job and keep on Judging. 

As I say in the book, enemies with people. No they're the best friends we have.

James Libson:  We're at the end but the journey to the ending is absolutely fantastic. I just commend the book against anyone listening today it's a great read.  It should be essential reading for a much wider audience.

Joshua Rozenberg QC:  Thank you very much for inviting me.  I've enjoyed it a lot.  Bye bye.

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