Oh, Tell Me the Truth About Lawfare

On the rule of discretion and the politics of the sundew

Thus, the very assumptions of the rule of law ideal appear to be falsified by the reality of life in liberal society ... The state, a supposedly neutral overseer of social conflict, is forever caught up in the antagonism of private interests and made the tool of one faction or another.

-Roberto Unger, Law in Modern Society (1976)

To observe the travails of the UK’s sitting Tory government in its dog days is like watching a bloated bluebottle being slowly trapped and devoured by a juridical sundew. With every thrashing of a leg or whirring of a wing, with every desperate lunge of insectoid flesh, yet more court cases are launched, and yet more sticky strands - pitiless, remorseless, hungry - attach themselves to the frantic victim. Panicked, it has no clear idea why any of this is happening, but it has a horribly lucid understanding of what the finale will be. There is no escape.

Hence, in the last month alone the government was embarrassed by two defeats in major judicial review cases, one concerning climate change policy and the other concerning the application of legislation in Northern Ireland. Neither of them are the first of their genre (see for example here, and here). Meanwhile, more hares are running. Earlier this month the FDA, the union of choice for senior civil servants, applied for permission to apply for judicial review of guidance issued by the Cabinet Office on 29th April 2024, which would purportedly require civil servants to act in breach of the Civil Service Code. And everybody expects that the new Safety of Rwanda (Asylum and Immigration) Act 2024 will give rise to a further confrontation with the courts later this year, as Act II in the ongoing drama concerning the legality of the ‘Rwanda scheme’.

And these are just the dramatic, headline grabbing examples. At a more humdrum, workaday level, government policy seems to be increasingly hemmed in by the courts. To pick an example almost at random, last year the Court of Appeal held that the policy of not making advance Universal Credit (i.e., welfare) payments to people who do not yet have National Insurance numbers (the equivalent of a social security number) because they have only recently arrived in the UK was unlawful on the basis that the policy was not in the court’s view permitted by the relevant statute. This kind of thing, wherein a relatively minor-seeming government policy is found to be unlawful on what appears to the layperson to be a technicality, has now simply become an ordinary, common-or-garden feature of our political life - no policy is fixed, because one can never know if some lavishly funded claimant will not turn up to apply to the courts to challenge it.

And this strategy of death-by-a-thousand-court cases is of course hardly unique to the UK. Readers will likely be familiar with the recent European Court of Human Rights ruling on Swiss government policy with relation to climate change; they may be less familiar with a brewing decision by the same Court with respect to the decriminalisation of the purchasing of sex in France. And then, in a very different context, there is the matter of Donald Trump’s various trials, transparently brought with the aim of ensnaring him in legal process so as to prevent him adequately campaigning and ideally to make his electoral victory impossible. There, the politics of the sundew have been less successful and the bluebottle looks set not only to escape but to be elected President, but the underlying similarity of approach is clear.

All this serves to demonstrate a truth that has long been known to legal theorists of a left-wing bent (ironically enough), which is that the idea of the judicial process that often exists in the head of the layperson (that law is a ‘neutral’ or objective body of rules which judges simply apply to resolve disputes) is more or less the opposite of the truth. It is in fact the case that the more power we grant to judges, the more politicised our lives become, and the more we become subject to arbitrary exercise of discretion.

This is because judges are the world’s greatest confidence tricksters - all the more effective for the fact that their tricks are for the most part unintentional. Not only do they generally in fact perform politics through the guise of ‘law’; they do so in such a way as to present political questions as faits accomplis, in a manner which cannot be gainsaid - to indeed set political decisions in stone, and insulate them thereby from democratic challenge. This, indeed, may be judges’ most politically significant role of all - and it suggests that a commitment to reinvigorating a depoliticised ‘rule of law’ may actually require a radical reduction in the amount of law that is produced.

Some potted intellectual history, then. Around the turn of the 20th century, a group of highly influential American legal theorists, who labelled themselves ‘legal realists’, began a quiet revolution against what they called ‘legal formalism’ - the idea that law is simply a mechanical process by which a rule is identified and then applied to determine an outcome in a particular case. Most of the realists, who were defined by Jerome Frank as ‘rule sceptics’, argued that a court case is not really a matter of applying rules at all. A rule is never totally determinate - it is always open to interpretation - and no two cases are ever identical, so it is always possible to argue that precedent should not apply. And, in any event, if a rule could clearly be applied to resolve a given dispute, then the dispute would never be being litigated in the first place because the parties would know the outcome in advance. Litigation by definition only really happens when a rule cannot resolve a dispute, and hence when it is arguable either way.

The judge in a case, for the rule-sceptics, therefore does not apply a rule; he applies his discretion in choosing the ‘best’ outcome, with ‘best’ ultimately of course being defined by political, economic, cultural, ideological, and emotional - that is to say, extra-legal - factors.

The legal realists - who were mostly New Dealers in favour of Franklin D Roosevelt’s wide-ranging reforms - were chiefly rebelling against the tendency of the Supreme Court of the era to find New Deal reforms unconstitutional on the basis of a restrictive reading of the Constitution. And they had a relatively humble goal - to make legal decision-making more open and honest. Courts, in their view, should acknowledge that they are not simply neutrally applying ‘the rules’, but are identifying which rule to apply, how it should be interpreted, and what outcome it should produce, on the basis of policy. This was not indefensible, because it was simply inevitable; what was indefensible was failing to recognise it (or, worse, concealing it).

But the later Critical Legal Studies movement, which emerged in the 1960s and 70s, picked up the realist critique of formalism and ran with it, going on to push the central claim that the image of a neutral, objective system of law is not merely a mirage (as the realists thought) but the legitimating myth of an oppressive system which produces injustice while presenting it as ‘lawful’ and hence beyond reproach.

This, the ‘crits’ argued, was of particular poignancy in the liberal understanding of law. Liberalism seeks to elevate law above politics into a sphere of neutrality or objectivity, as though certain matters are simply beyond question: human rights, equality, autonomy, property, freedom of contract, and so on and so forth. But this, according to the crits, was itself a political move - a way of occluding debate about a particular subject by making criticism itself effectively unlawful. As soon as a topic has been made the subject of a legal ruling, it becomes insulated from challenge - and more or less concealed from view as a matter of public debate. It is taken off the table, and the very act through which this occurs is conceptualised (often falsely) as the application of ‘justice’, making it almost impossible then to subsequently challenge democratically.

The classic example, always trotted out in the jurisprudence textbooks, is the famous US Supreme Court decision in Lochner v New York (198 US 483 (1905)). Here, a piece of New York legislation, which limited the hours employees in bakeries could be required to work to 10 hours a day or 60 hours a week, was held to be unconstitutional because it violated the due process clause of the US Constitution, which prohibits ‘unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract’. The point, of course, is that the amount of time employees of bakeries should be required to work is a political question, as is the meaning of what would be an ‘unreasonable, unnecessary and arbitrary interference’ with the liberty of the individual to contract more broadly - remember, rules are always indeterminate and open to interpretation, and the words ‘unreasonable, unnecessary and arbitrary’ are a perfect case in point. But by framing the matter as ‘constitutional’ the Supreme Court was able to drain it of political import and present the entire (exploitative, in the eyes of the crits) structure of labour relations in the US as a fait accompli: not merely the the right policy, but the law, and hence unquestioned - and unquestionable.

The crits, for all of their flaws, were clearly onto something here. I happen to believe very strongly in the right and liberty of the individual to contract, but I recognise that the legal basis for freedom of contract ultimately rests on political, not ‘constitutional’ justification: it is a commitment to the free market itself as a political ideal which underpins the freedom of contract, not mere legal form. And the interesting thing about the crits’ argument is that, as time has gone on and law has come to be representative of rather different interests than those which may have prevailed in the middle of the 20th century and before, their critique has started to slice in the opposite direction.

There is no better illustration than what has happened in the field of immigration law, where a Critical Legal Studies analysis of the present UK government’s legal difficulties would be almost too ‘on the nose’. It would run as follows: the economic system upon which our establishment secures its dominance, its status, and its influence is contingent upon the mass importation and exploitation of cheap labour from overseas so as to maintain downward pressure on wages, fuel the service industry whose benefits the establishment classes so enjoy, and plug gaps in the workforce produced by declining birth rates. And, moreover, anyone can observe that the aesthetic sensibilities of that establishment are also self-consciously and nakedly ‘global’; its members are in love with the idea of inhabiting a ‘global village’, enjoy the feeling of being in a ‘multicultural environment’, and feel a strong sense of cultural cringe with respect to British institutions.

It is entirely in keeping with both the economic interests and the cultural tastes of the establishment classes, therefore, that the right of migrants to come to work in the UK should be more or less guaranteed whether they do so through official channels or not - and that, moreover, this right should be rendered apolitical, and therefore obviously politically unchallengeable, on the basis of it being ‘the law’. It therefore should be absolutely no surprise that whenever a judge - always and everywhere an establishment figure par excellence - is called upon to decide whether immigration policy is lawful or not, his interpretation of the underlying rules will hinge on these extra-legal preferences for more, rather than less, immigration. And, by extension, it should be absolutely no surprise that such a judge will more likely than not have certain sympathies which play out in his judgments when a matter of immigration law is raised.

To cite just one brief illustration, the recent defeat for the UK government in the Northern Ireland High Court, In re NIHRC and JR 295 (Illegal Migration Act 2023) [2024] NIKB 35 - which I linked to earlier in this piece and will do so again here - contains a classic example of the phenomenon I am describing, which you can find at paragraphs 68-70 of the judgment. I will not go into too much detail here, as the case is complicated and probably deserving of a post in its own right, but in essence the issue being addressed in this part of the judgment is the question of whether asylum seekers in Northern Ireland come under the umbrella of the civil rights commitment in the Good Friday Agreement (the 1998 agreement which brought to an end the Troubles in Northern Ireland). The relevant text of the Good Friday Agreement reads as follows:

[The parties affirm] their commitment to the mutual respect, the civil rights and the religious liberties of everyone in the community. Against the background of the recent history of communal conflict, the parties affirm in particular [a list of rights follows].

Once again, I call you here to recall that no rule is ever wholly determinate: what does ‘everyone in the community’ mean? For the government, the phrase had to be understood within the context of ‘the healing of sectarian divisions in Northern Ireland’, and therefore was never intended to include asylum seekers under its umbrella. And it seems to me to be easy to have some sympathy with that view, given that the very next sentence in the Good Friday Agreement text explicitly spells out that it is to be understood ‘against the background of the recent history of communal conflict’ - suggesting that it is really to be read as an attempt to emphasise that both Catholics and Protestants in the province are part of ‘the community’ (rather than two different communities) as such. But notice the interpretation which the judge, Humphreys J, gives to the phrase:

‘While it is true to say that the [Good Friday Agreement] did not expressly reference immigration or asylum, there is no basis to exclude such individuals from the wide compass of ‘everyone in the community’…[T]he rights of asylum seekers must come within the definition.’

The question-begging here is barefaced: whether or not one thinks there is any basis to exclude (or include) asylum seekers as being part of ‘the community’ derives entirely from how one defines what ‘the community’ means. Is ‘the community’ simply the people living in a place, no matter where they originally come from and no matter what their ties to where they live now? Or does ‘the community’ only encompass people who have some kind of a deep-rooted connection to the place where they live and the others who live there - and who have a lawful basis for their residency?

That Humphreys J could not even see that there might be a competing interpretation of the words ‘the community’ and that it might suggest a different understanding of the law serves to illustrate the realist point so beautifully that one could hardly dream of anything better. And we see in this example just how easy it is for the political, cultural, and, really, the aesthetic preferences of judges, and the class to which they belong, to slip seamlessly into the operation of the legal system. Humphreys J was not, I am sure, consciously setting out to mould immigration law in Northern Ireland to his personal political preferences; rather, the political preferences in which he undoubtedly marianades moulded his own understanding of the law itself - and the effect was as obvious and as powerful as if it was deliberate: asylum seekers, whether or not they came to Northern Ireland unlawfully, are part of ‘the community’, and that is that.

What is true in this very small example is obviously true across the piece, and across the courts of the developed world - whether the subject matter is climate change policy, Brexit, employment law, the rights of the buyers of sex, you name it. It would be wrong to say that judges have been in some sense politicised or ideologically captured, because what is going on is entirely unintended; it is rather that the very exercise of legal decision-making is in its nature impossible to unentangle from the pre-existing worldview of the person who makes the decision. In the 1920s, when the realists were in their pomp, and in the 1960s, when the ‘crits’ came to prominence, it was undoubtedly true that the worldview of many judges was unreflectingly conservative. Now it is the opposite (or perhaps one should say that it remains impeccably in alignment with the attitudes of the establishment classes of the day, which have themselves shifted in a broadly liberal, progressive direction) and we therefore see the opposite consequences play out.

What, then, is to be done? The answer, as I earlier suggested, must really be to embrace a project not of legal reform so much as of legal minimalism. The aim of depoliticising law as such cannot be fully achieved, but it is possible to diminish its role in our social, economic and cultural affairs through limiting its capacity to facilitate the politicisation of those fields. And this means, paradoxically, that those of us who like the idea of ‘the rule of law’ in the abstract need to reconcile themselves to the idea that less is more. This obviously does not mean that there should be no law at all - the most basic insight of legal philosophy, made plain by Aeschylus, was that civilisation cannot exist without it. Rather, it means a commitment to reducing law to its optimal level - where it fulfils its essential function of providing stability of expectations, and no more than that. It means, in short, reducing the number of avenues down which the politicisation that is an inevitable part of legal decision-making makes its journey into social, economic and cultural life.

This calls conservative politicians in particular to do two things which they are notoriously bad at. The first is to have courage - to refrain from creating legislation merely to be seen to be doing something, and to commit to repealing existing legislation without replacing it. Whenever a piece of legislation is created, another set of opportunities comes into being for judicial interpretation that will likely bend in a particular political direction: this is always what should be at the forefront of the legislator’s mind when dreaming up yet another statute to paper over a real or imagined crack in public policy.

And the second is to think in a serious way, which means thinking in the long-term. A great many of the defeats which have been inflicted on the current government in the courts have their origin in legislation created during the Blair and Brown era, but others are purely self-inflicted. In re NIHRC and JR 295 (Illegal Migration Act 2023) provides, again, a useful illustration: ultimately, the result of the case was that the legal framework for the government’s flagship illegal immigration policy was found to be ineffective in Northern Ireland - really because nobody predicted that the Windsor Framework, agreed with the EU in 2023 in the aftermath of Brexit, could be interpreted to bestow EU law on asylum seekers living in Northern Ireland as well as just the citizenry. There is an important lesson in there to learn for future conservative governments, if indeed there is ever such a thing again: that one cannot simply make law and forget about it, because it is always in the power of the courts to interpret the laws one has made - and that power does not diminish with time. It is inherent to the process, and when one therefore makes law in haste, one repents at leisure.