Joshua Rozenberg (2020) Enemies of the People: How Judges Shape Society. Bristol: Bristol University Press. Paperback: ISBN 978-1-5292-0450-6. £14.99
© Book review by Ursula Smartt, Faculty of Law, New College of the Humanities (London)
Do judges make law? Is usually one of the first essay questions new law students have to answer as part of their ‘legal systems’ syllabus. This is the overarching question Joshua Rozenberg’s book seeks to answer. This very readable concise paperback provides some of the answers: whether some of the most senior judges with their – at times – controversial judgments, have become more political after the introduction of the Human Rights Act 1998. The title, with its front-page newspaper headline is catching, reflecting the then editor of the Daily Mail, Paul Dacre’s opinion of the UK judiciary, following the Gina Miller (No 1) Supreme Court ‘Brexit’ judgment in 2016. The author notes the constitutional importance of this case at the start of his preface (p. vii) and devotes what is probably the strongest chapter in the book, Chapter 2 ‘The Miller Tale’, to the legal history of this case which he – as a legal journalist – clearly followed in person and in great detail. Case law is helpfully cited as endnotes to each chapter in line with OSCOLA referencing, aiding students and academics.
It was not the first time that the then editor of the Daily Mail had called the UK judiciary ‘enemies of the people’. The original statement was shortly after the Max Mosley judgment in July 2008, when Paul Dacre first uttered this scathing remark, coupled with his comment that the judges were making privacy laws ‘via the backdoor’. In his famous speech to the Society of Editors in November 2008, Dacre launched a personal attack on Mr Justice Eady who had granted the then Formula 1 Boss, Max Mosley, his right to privacy under Art. 8(1) ECHR in his action against the (now defunct) Murdoch tabloid, News of the World, when Dacre said:
The law is not coming from Parliament – no, that would smack of democracy from the arrogant and amoral judgments – words I use very deliberately – of one man. I am referring, of course, to Justice David Eady who has, again and again, under the privacy clause of the Human Rights Act, found against newspapers and their age-old freedom to expose the moral shortcomings of those in high places. … The judge found for Max Mosley because he had not engaged in a ‘sick Nazi orgy’ as the News of the World contested, though some of the participants were dressed in military-style uniform. Mosley was issuing commands in German while one prostitute pretended to pick lice from his hair, a second fellated him and a third caned his backside until blood was drawn. Most people might consider such activities to be perverted, depraved, the very abrogation of civilised behaviour for which the law is supposed to be the safeguard. Not Justice Eady. To him such behaviour was merely ‘unconventional’. … But surely the greatest scandal is that while London boasts scores of eminent judges, one man is given a virtual monopoly of all cases against the media enabling him to bring in a privacy law by the back door.
This book serves as vital additional reading for law as well as journalism students because well- known cases on traditional Public and Administrative, criminal, family and media law syllabuses are brought to life by Rozenberg. He was there as the BBC’s legal correspondent as well as a full-time journalist covering cases from the press bench, along with being the presenter of BBC Radio 4’s popular programme and podcast ‘Law in Action’.
There are two very good examples which assist on statutory interpretation, a topic which might be potentially dull and archaic for the modern-day law students, but Rozenberg explains what is meant by ‘reading down’ legislation and making use of s. 4 HRA, whereby judges make a ‘declaration of incompatibly’ with the Convention, referring inter alia to s. 3 HRA which states that judges should interpret primary and subordinate (secondary) legislation ‘so far as it is possible to do’ with Convention rights. The author then chooses the important case of Juan Godin-Mendoza to make his point in the Preface (pp. 16-17) – pity he did not go into the case a little further in his Chapter 4 ‘Families and the Law’ (pp. 66 ff). Here he picks up on the theme of cohabiting homosexual couples and their discriminatory treatment during the early 2000s, as far as housing or family law was concerned. Since this is Lady Hales’ forte, the author refers frequently to her judgments and opinions, once again helpfully explaining the purposive interpretation of legislation which was, at that time, no longer compatible with human rights legislation. For example, a number of cases where the applicants invoked either Articles 8 (‘right to privacy’) or 14 ECHR (‘discrimination’), referring to a few high profile cases, such as the long-running and ultimately agonising judgment in the Tini Owens’ divorce case (pp. 68 – 71) or Steinfeld and Keidan 6 (pp. 76 – 82). The reader gets the sense that these legal ‘stories’ are told from Rozenberg’s first-hand experience, whereby he adds human touches to precedent cases which might otherwise seem rather abstract when reading them in (online) law reports.
To use Jennings’ catchphrase: Rozenberg puts the ‘flesh and bones’ on the cases by way of his user- friendly journalistic style. The ‘Right to Death’ Chapter 5 is particularly poignant. The author picks out the most prominent cases, starting with the Tony Bland case, the young victim of the Hillsborough football stadium disaster in 1989, whose father had to apply to the courts together with the Airedale NHS hospital trust doctors, to allow for life support to be switched off. The landmark judgment demonstrates clearly that judges moved the common law on and that judicial attitudes changed in this controversial area of assisted suicide, from the separation of the Conjoined Twins at a Manchester hospital to the Tony Nicklinson case. In all these cases the most senior judges (HL and UKSC) urged parliament to make changes or repeal s. 2(1) of the Suicide Act 1961 which to date has not taken place. The topic of assisted suicide and a persons’ right to die is particularly well explored by Rozenberg, looking in detail at comments by individual judges, such as Lord Dyson (who also endorses and praises this book) and the deepest sympathy that emanates from these cases as the author had clearly followed the actions through the courts.
Chapter 6 engages with discrimination legislation, particularly the Equality Act 2010. The Northern Irish case of Siobhan McLaughlin is picked up, shining a helpful light on devolved legislation and the way the Belfast courts dealt with an unmarried widow, mother of four children, when her claim for widowed parents’ allowance was rejected by the N. I. Department for Social Development because in law she was not strictly a ‘widow’. In his lively style, Rozenberg engages the reader: ‘what do you think’ the Supreme Court in Ms McLaughlin case, as she invoked Article 14 ECHR? Had she been a victim of discrimination? “I’ll make it easier for you” – Rozenberg says “the answer it gave to questions 1 and 3 were both ‘yes.” (p. 116). The author then walks the reader through a step-by-step guide, dissecting the judgment in McLaughlin, explaining why the Supreme Court Justices were divided in their opinion, explaining further the view of the dissenting judges which is so important in the reading of English law reports. Ms McLaughlin’s appeal was allowed by a majority of four to one. This part of the book serves as a particularly good example for students who find the reading of law reports exceptionally tedious: Rozenberg breaks a judgment into bite-size bits, explaining some of the more important sections of a judgment and why we read the reports (pp. 114 – 121).
Regrettably Chapter 8 ‘Privacy and the Press’ is not as strong as the other sections in the book. Rozenberg hurries the reader through undeniably well-known cases, such as the Gordon Kaye case, where Lord Justice Glidewell famously ruled that there is ‘no right to privacy’ in English law; Douglas v Hello!, followed by supermodel Naomi Campbell’s privacy action against the Daily Mirror, for exposing her as a drug addict, and finally Sir Cliff Richard’s suing the BBC for breach of his privacy rights. Whilst senior BBC journalists like the author might well be familiar with the subject matters of privacy and confidentiality, the average law or journalism student will not gain a great deal in terms of legal discussion in this chapter. Chapter 8 closes with an all too brief commentary on ‘too much judicial power’? (pp. 152 – 153). The answer is provided by a quotation from a well-known legal commentary by Professor Ekins, following the Supreme Court judgment in Privacy International v Investigatory Powers Tribunal in 2019. The reader is left to analyse this important quote herself still seeking a bolder statement from the Rozenberg whether judicial law-making has become too political. The endnote for Ekins’ quote No 30 only reads, “I cannot find this statement published on any Policy Exchange website”, though the full Ekins text was published by the Spectator magazine in 2019. Reading between the lines in this book, Rozenberg appears to send the message that the judiciary has become political in some of its judgments, empowered by the HRA 1998, and therein posing a force to be reckoned with when there is a party majority in parliament, thereby holding the executive to account.
The book concludes with a brief note on Brexit and ‘far from being enemies of the people, judges are just about the only friends we have.’ Rozenberg finishes by applauding the boldness of the judiciary by stretching their constitutional powers at times to the limit by challenging ministers to ‘breaking point’ (p. 188) – concluding with the second Gina Miller case which challenged the Prime Minister, Boris Johnson’s decision to prorogue parliament. The book is topical, up to date, enormously readable and I will definitely recommend it to my law student cohorts.
References (in order of mention):
- R (on the application of Miller and another) v Secretary of State for Exiting the European Union  UKSC 5 (on appeal from:  EWHC 2768 (Admin) (sub nom ‘the Gina Miller No 1 case’).
- Mosley (Max) v Newsgroup Newspapers Ltd  EWHC 1777 (QB).
- ‘Society of Editors: Paul Dacre’s speech in full, 9 November 2008: https://www.pressgazette.co.uk/society-of-editors-paul-dacres-speech-in-full/
- Ghaidan v Godin-Mendoza  UKHL 30.
- Owens v Owens  UKSC 41.
- Steinfeld and Keidan v Secretary of State for Education  EWHC 128 (Admin); R (Steinfeld and Keidan) v Secretary of State for Education  EWCA Civ 81.
- Airedale NCH Trust v Bland  AC 789.
- Re. A (Children) (Conjoined Twins: Surgical Separation)  Fam 147.
- R (Nicklinson) v Ministry of Justice  UKSC 38.
- Re. McLaughlin’s Application for Judicial Review  UKSC 48.
- Kaye v Robertson  FSR 62.
- Douglas v Hello! Ltd. (CA)  QB 967.
- Campbell v MGN Ltd.  UKHL 22.
- Richard v BBC  EWHC 1837.
- R (Privacy International) v Investigatory Powers Tribunal  UKSC 22.
- ‘Do our Supreme Court Judges have too much power’, by Richard Ekins, The Spectator, 15 May 2019.
- R (Miller) (No 2) v Prime Minister, Cherry v Advocate General  UKSC 41.