Have judges overplayed their hand? Have they started illegitimately wading into political and social issues, forgetting their proper place? Speak to some commentators or read particular newspapers and you would certainly think so. When, during Gina Miller’s challenge to the government’s power to trigger Article 50, the Daily Mail branded judges ‘enemies of the people’, the argument was that they were not ruling on a legitimate question of law but frustrating the people’s will to leave the EU. It is that headline from which this book takes its title.
Another, less egregious form of judge-bashing has come from members of the intellectual elite. These include Jonathan Sumption, himself a former Supreme Court justice, who in last year’s Reith Lectures on ‘Law and the Decline of Politics’ argued that law’s ‘expanding empire’ was taking over space once held by politics, and the conveners of the Judicial Power Project at the think-tank Policy Exchange, who seek to address judicial overreach. While none of these would support the Daily Mail headline, they have trenchantly argued that our judges need reining in.
This is the view that Joshua Rozenberg contends with in his informative and readable new book. A presenter of the long-running Radio 4 programme Law in Action and an honorary QC, he seeks to explore whether there really is excessive activism in the courts.
It is worth stating at the outset