In October, David Davis MP (Con), the former minister, and Dan Jarvis MP (Lab), a former army officer, together with the charity Reprieve, began judicial review proceedings against the government’s decision not to hold a public inquiry into UK involvement in rendition. The legal action followed parliamentary criticism of the government’s policy towards rendition. As David Davis MP commented: “When I said in Parliament ‘see you in court’, I meant it“.
This action is one of several judicial review applications MPs have brought in recent years. It also follows the intervention in May 2019 by a group of MPs, the All Party Parliamentary Group on Fair Business, in the Supreme Court hearing of Sevilleja v Marex 2018/0178, arguing as an intervenor that the ‘rule against reflective’ loss should be applied flexibly for public policy reasons.
These claims raise the difficult question of whether MPs should use legal processes to challenge the government or change the law. If an MP wishes to influence government action, they have a direct way to do so, by voting in parliament. Conversely, MPs are subject to the separation of powers, a doctrine acknowledged both in court and in parliament. The Supreme Court replaced the House of Lords in order to comply with this doctrine. MPs are not permitted to sit as judges, and Supreme Court judges are not allowed to take part in the House of Lords.
Indeed, the doctrine of exclusive cognisance protects MPs from judicial scrutiny, albeit in R v Chaytor [2010] UKSC 52, which concerned the trial of MPs for false accounting arising out of the parliamentary expenses scandal, this protection was applied narrowly.
It can be said that an MP bringing a claim for judicial review, or other judicial intervention in court because of their unhappiness with a government policy is a contravention of this principle. MPs have the benefit of being able to vote on legislation, change the government through a vote of no confidence in the Prime Minister. They also have a special position, supported by parliamentary privilege, of being able to debate issues in parliament. Should they also be able to launch court proceedings where they cannot achieve the result they wish for via parliament?
This question should be seen in the context of a wider debate. In his 2019 Reith Lectures, ‘Law’s Expanding Empire’, Lord Sumption criticised what he sees as the decline of politics and the rise of the law to fill the void. It could well be said that an MP saying to their parliamentary opponents ‘see you in court’ is another example of the judicial system trespassing beyond its proper constitutional boundaries.
Having said all of that, judicial review actions cannot be brought by anyone. A claimant must have standing, i.e. a sufficient interest in the subject matter of the claim. Similar, an intervenor in the Supreme Court will need to explain why they are in a special position to make submissions. MPs, it is submitted, do not, and should not, have standing solely because of their political position, except in the case of actions concerning the business of parliament itself (such as the recent Brexit litigation). Indeed, if the position was the basis for the standing, then this would be subject to loss at any time, should an election be called.
However, many MPs through their work with their constituents and government policies, have deep experience and expertise which means that they are in a position to have standing to bring claims. That experience and expertise is not necessarily separate their roles as MPs – it may well have been acquired via their parliamentary work. But assuming they do have proper standing, the court should then focus on the merits of the case, not the identity of the claimants. As Lady Hale said in her recent Dame Frances Patterson Memorial Lecture, by way of riposte to Lord Sumption: “the courts have to go on doing their job – the job which Parliament has given them or which the common law has expected of them for centuries“.
Having said that, the Brexit litigation has thrust the judiciary into the spotlight. From The Sun describing the Supreme Court justices as ‘fair game’, to the Attorney General suggesting that US-style confirmation for its members, the judiciary is under more political pressure now than in any time in recent history. So far, the judicial interventions by MPs have been respectful and measured.
However, it can well be seen that if an MP sought to make political capital by launching an aggressive court intervention against the government, judges could find themselves having to assume politicised roles. That would undermine the separate of powers and, potentially, the respect in which the judiciary is generally held in the UK.
This is something that both judges and MPs should be wary of. The independence and expertise of the UK’s judiciary has long been seen as a highlight of our civil society, and a measured approach to interactions between the courts, the government and the legislature is critical to safeguarding this quality.
Ned Beale is a litigation partner at Trowers & Hamlins and acted for the All Party Parliamentary Group on Fair Business in Sevilleja v Marex UKSC 2018/0178
