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(Denis James), 1947- editor. Title: The courts and the people : friend or foe? : the Putney Debates 2019 / edited by DJ Galligan. Description: Oxford ; New York : Hart, 2021. | "On 28 October 1647, the weekly meeting of the General Council of the New Model Army held in St Mary's Church, Putney turned into a debate about matters of constitution ... Nearly four centuries later, in 2017, the Putney Debates were revived. The constitutional controversies aroused by the referendum in 2016 on Britain's membership of the European Union were the stimulus ...This volume results from the 2019 debates on the subject of the courts ... The following chapters, with one exception, began with the presentations at Putney in March 2019 ...The debate was made possible by the sponsorship of the Foundation for Law Justice & Society, an independent institute, which has now ceased activities but was at the time affiliated with Oxford University" - ECIP Preface. | Includes bibliographical references and index. Identifiers: LCCN 2021030086 (print) | LCCN 2021030087 (ebook) | ISBN 9781509940035 (hardback) | ISBN 9781509952694 (paperback) | ISBN 9781509940059 (pdf) | ISBN 9781509940042 (Epub) Subjects: LCSH: Judicial independence— Great Britain— Congresses. | Political questions and judicial power— Great Britain— Congresses. | Judicial independence— Congresses. | LCGFT: Conference papers and proceedings, Classification: LCC KD4645 P88 2021 (print) | LCC KD4645 (ebook) | DDC 347.41/012—dc23 LC record available at https://lccn.loc.gov/2021030086 LC ebook record available at https://lccn.loc.gov/2021030087 ISBN: HB: 978-1-50994-003-5 ePDF: 978-1-50994-005-9 ePub: 978-1-50994-004-2 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters. Preface O N 28 OCTOBER 1647, the weekly meeting of the General Council of the New Model Army held in St Mary ’ s Church, Putney turned into a debate about matters of constitution. Stretching over several days, the meeting ranged across critical matters of great moment. The civil war had been won, the king was in captivity, parliament in disarray, and the New Model Army in charge. Competing ideas of c onstitution were expressed and the Levellers ’ proposed A greement of the People was, after animated debate, consigned to committee from which it never re-emerged. Nearly four centuries later, in 2017, the Putney Debates were revived. The constitutional controversies aroused by the referendum in 2016 on Britain’ s membership of the European Union were the stimulus. A signal that beneath the calm and seemingly settled constitutional order of the United Kingdom, the views of members of parliament, the courts, offi cers of government, and most of all the people differ widely and are often defended passionately. The need for better instruction and more informed debate accessible to the public became plain. The new Putney Debates were instituted as an annual event with the aim of contributing in a modest way to those ends. Each year a subject is selected for examination, and speakers are invited to make brief but informed presentations followed by debate among themselves and with the audience. The proceedings are recorded on fi lm and accessible to the public. This volume results from the 2019 debates on the subject of the courts, their place in the constitutional order, their relations with the people, and the divi- sion of power between the courts and the other institutions of government. The following chapters, with one exception, began with the presentations at Putney in March 2019. I would like to record my thanks to the contributors for the considerable time and labour spent in converting a fi ve-minute presentation into a substantial chapter. While the emphasis is on courts in the United Kingdom, a comparative element is included with contributions from Europe and the United States. The debate was made possible by the sponsorship of the Foundation for Law Justice & Society, an independent institute, which has now ceased activi- ties but was at the time affi liated with Oxford University and based at Wolfson College. My thanks to the Trustees for their support and to the administrative vi Preface staff, Ms Judy Niner and Mr Phil Dines, for ensuring the debates ran smoothly and are recorded for posterity. I wish also to thank Hart Publishing, a division of Bloomsbury, for publishing the volume. It has been a pleasure to work with the editors, Ms Rosemarie Mearns, Ms Kate Whetter and Ms Linda Staniford. Denis Galligan Editor Table o f Contents Preface.........................................................................................................................................v List of Contributors...............................................................................................................ix The People and the Courts: An Introduction...................................................................1 DJ Galligan 1. The Case for Judicial Independence in the Age of Populism..........................17 Robert J Sharpe 2. Judicial Independence and Perceptions of Legitimacy.....................................35 Nick Friedman 3. The Judicialisation of Politics and Threats to Judicial Independence: When Should We ‘Cry Wolf 7.....................................................................................59 Ezequiel Gonzalez-Ocantos 4. Judicial Independence and Transformative Constitutionalism: Squaring the Circle of Legitimacy............................................................................73 Daniel Butt 5. Self-fulfilling Prophecies: ‘Populism’ and ‘Judicial Independence’ in Europe............................................................................................................................93 Bogdan Iancu 6. Judicial Independence - The View from Israel...................................................115 Amir Paz-Fuchs 7. The Nature of Judicial Review in America........................................................133 John W Adams 8. Under Pressure: Building Judicial Resistance to Political Interferences...................................................................................................................153 Katarina Sipulova 9. Transparency in the ‘Fairyland Duchy of Luxembourg’................................171 Catherine Barnard 10. From Mystery to Transparency: How Judges Promote Public Understanding of the Judicial Role.......................................................................189 Paul Magrath vili Table of Contents 11. Legal Elites, Lord Chancellors and Judicial Independence............................205 Graham Gee 12. Ally or Enemy, Friend or Foe...................................................................................223 DJ Galligan Bibliography...........................................................................................................................241 Index........................................................................................................................................249 List of Contributors John Adams is Adjunct Professor at Rutgers University, New Brunswick, USA. Catherine Barnard is Professor of European Law and Employment Law at the University of Cambridge and Fellow of Trinity College, Cambridge, UK. Daniel Butt is Associate Professor at the Department of Politics and International Relations at Oxford University and Fellow of Balliol College, Oxford, UK. Nick Friedman is Fellow and College Lecturer in Public Law at St John ’ s College, Cambridge, and University Lecturer, Faculty of Law, University of Cambridge, UK. Denis Galligan is Professor of Socio-Legal Studies Emeritus at Oxford University and Professorial Fellow Emeritus at Wolfson College, Oxford, UK. Graham Gee is Professor of Public Law at Sheffi eld University, UK. Ezequiel Gonzalez-Ocantos is Associate Professor at the Department of Politics and International Relations at Oxford University and Professorial Fellow at Nuffi eld College, Oxford, UK. Bogdan Iancu is Associate Professor in Comparative Constitutional Law and Theory at the University of Bucharest, Romania, and Fellow of the Foundation for Law, Justice & Society, UK. Paul Magrath is Head of Product Development and Online Content at the Incorporated Council of Law Reporting, UK. Amir Paz-Fuchs is Professor of Law at Sussex University and Fellow of the Foundation for Law, Justice & Society, UK. Robert J Sharpe is Distinguished Jurist in Residence, Faculty of Law, University of Toronto; Visiting Professor, Oxford University; and Retired Justice, Court of Appeal for Ontario. Katarina Sipulova is Senior Researcher at the JUSTIN Faculty of Law, Masaryk University, Czech Republic. The People and the Courts: An Introduction DJ GALLIGAN I T HE AIM IN the following chapters is to examine the place of the courts in the constitutional order, an order that consists of powers and relation- ships. Power is the subject matter of relationships among the people, between the people and the agencies of government, and among the agencies themselves. Relations between the people and the courts have centre stage, with other sets in supporting roles. The issues under review are the nature and purpose of the power of courts, the reasons and justification for it, the con- straints and limits, and how power is used in practice. The different ways of conducting the analysis are evident in the chapters. Some start with a political theory from which the constitutional order follows. Political theories tend to be less concerned with the world as it is but rather how it ought to be ordered according to a set of ideals. Others are inclined towards a social understanding which means examining relations as practised and experienced, aiming to draw out the sentiments and dispositions that guide the parties in their perceptions and understandings. Yet another approach is the historical where the aim is to uncover the foundations of the relationship and to chart the route from the past to the present, guided by the adage that in order to know where we are today, we need to know how we got here. A final approach is the comparative, the idea that nations confront common issues is the design and practice of the constitutional order, from the study of which we gain knowledge of constitu- tions generally and acquire insights into particular cases. Some of the chapters here are squarely within one or other of the approaches, while others combine elements of each. My purpose in this introduction is not to give a brief descrip- tion of each chapter but to sketch the setting and to show how each contributes. 888 The setting of the 2019 Putney Debates was one of criticism, and by some condemnation, of the courts. The courts are condemned for being part of an elite separate from the common people and criticised for lacking knowledge of or showing concern for the common people. In the opening chapter Robert 2 DJ Galligan Sharpe confronts both these issues and sets out to show how the courts, properly framed, are the friends rather than the foes of the people. On his account, the primary duty of judges is to apply the law in deciding the cases before them, while the law is on the side of the people. First, the law protects their peace and security, saves them from oppression by the powerful and guarantees that even unpopular cases will be dealt with according to settled standards. Secondly, if the law becomes remote from the people, distant from their lives and experiences, and instead refl ecting the interests of groups and guilds, the courts are there to keep it in line with ‘ contemporary social mores and perceptions’ , in ‘h armony with prevailing social values ’ . Legal values follow from social values, the most fundamental of which is the right of each person to be treated with dignity and respect, which generates juridical equality and the right to be treated equally before the law. The courts make sure the legal interpretation of social values keeps pace with contemporary understanding. Thirdly and critically, the law ‘ serves and belongs to the people ’ and ‘ must remain within the broad channels of public acceptability if it is to be respected ’ . And fi nally, public acceptability imposes its own constraints, for the courts have a duty to uphold the rights of individual persons and vulnerable groups. So in a few deft sentences the courts are bolted securely into the constitutional order. The rule of law protects the people and provides social goods of fundamental importance, of which the courts are the guardians. In order to earn that place, discharge their duties and be effective guardians, courts need to have independence. The rule of law is not the only constitutional value, and here democracy enters the arena. The two do not at fi rst sight seem happy companions. Relations between them are best approached, fi rst, by saying what we mean by democracy, secondly, showing how courts fi t in, and thirdly, noting the problems that result. Democracy has its origin in the idea of the people, the d emos , ruling themselves. On that foundation all sorts of structures are erected, each claiming the creden- tials of democracy. Just as equity was said to be as long as the lord chancellor ’ s arm, democracy appears to be in the eye of the beholder. It is enough for present purposes to settle on a rather middle-of-the road notion that power in some sense comes from the people, is to be used to serve the well-being of the people, and is to be accounted for to the people. If that is the governing idea enthroned at the summit of society, the route down to practice passes through several circles, each contributing to the whole yet each offering a choice of pathways. The constitutional order is the fi rst circle conceived and designed to give effect to the governing idea. It is itself open to copious variation. Two ideas are most prominent. One is that each person counts, and is entitled to equal concern and respect, which translates into juridical equality and rights to be treated in certain ways. The other is that the people are the source of the authority of agen- cies to which they delegate much of their native authority, while reserving some matters for their own resolution. Descending to the next circle, the people ’ s task is to settle the content to these general ideas. Again there are various options from which to choose. One is how far to extend equal treatment, whether it