Thursday 16 February 2012

Sedley v Sumption

Obiter J has drawn attention to a very interesting article in the LRB by Sir Stephen Sedley in reply to Lord Sumption's lecture which I mentioned here.

Sir Stephen, quondam C of A, makes some very good points, and I prefer his honesty (that Judges do sometimes have to touch on politics when making judgments about the law) to Sumption's rather pompous cry that Judges should shy completely away from politics - when sometimes they cannot avoid it - as Sedley says:

"But one asks what the critics of such decisions want. That local authorities should be able to break the law without redress? That courts whose job it is to apply the law should abdicate? That councillors or officials should be allowed to dispense with the law if they think fit?"

Judges cannot just hang back and refuse to intervene in a legal question, just because it touches upon policy - they have to tread carefully and judge when they are trespassing on the Sovereign Parliament's toes -  but they cannot just leave the whole social - legal field to politicians - because that field has some very complex statutory law in it, and HMG has to be kept within its vires set out therein.

There is one part of the essay which is very interesting:

Instead, there is a repeated insinuation that judicial interference in the political process regularly occurs: ‘The judicial resolution of inherently political issues is difficult to defend.’ It is not only difficult to defend; it does not happen. I can recall in 1995 refusing to permit judicial review of a white paper on night flights at Heathrow which I had found to be ‘a farrago of equivocation’. I did so on the ground that its deviousness was a matter for political debate, not for adjudication. Robert Stevens in his book The English Judges comments that my decision did not endear me to ministers, but I doubt that allowing judicial review to proceed would have been more likely to earn their gratitude.

Judges who sit in the Administrative Court could give scores of other examples. Here is one from R (Wheeler) v. Office of the Prime Minister (2008):

Whether the differences are sufficiently significant to treat the Lisbon Treaty as falling outside the scope of an implied representation to hold a referendum in respect of a treaty ‘with equivalent effect’ must depend primarily, as it seems to us, on a political rather than a legal judgment. There are, as Mr Sumption submitted, no judicial standards by which the court can answer the question.

Sedley retired on 31.1.11, at 71  - he could have brought his politico-legal Admin Court Judge insight to the Supreme Court for 4 years.  

Should it have been Lord Sedley as well as Lord Sumption?

Now that is an interesting debate.............

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