LCJ warns judges not to administer responsibilities held by local authorities and others

Judges have to be careful to remember that they cannot administer the responsibilities that others – such as local authorities – have, the Lord Chief Justice warned this week.

At his annual press conference Lord Judge said he was “very sympathetic” to the view recently expressed by Jonathan Sumption QC, the Brick Court Chambers barrister who is to become a Supreme Court judge.

In a wide-ranging lecture last month, Sumption warned of the risks of judicial intervention and of judges making excessively political decisions.

Asked at the press conference by a reporter from the Daily Mail whether he agreed with Sumption, the Lord Chief Justice said: “Judges have to be careful to remember that we are enforcing the law. As to that, we have no choice. We enforce the law as we find it to be.

“I think we have to be careful to remember that we cannot administer the responsibilities which others have. So local authorities have responsibilities, and so on and so forth. I think there is occasionally a danger of an overlap between us deciding what the law is and saying what it is, and then making a judgment accordingly.”

Lord Judge added that occasionally – “and I suppose it is inevitable” – there was overlap where what judges were doing, or the orders they made, impacted on the administration for which others were responsible.

“So when I say I am sympathetic with Mr Sumption's view, it is a genuine sense of sympathy,” he said. “We have to be careful to make sure that we stay within our proper function.”

In his lecture, Sumption claimed that the reticence of English judges about the constitutional implications of their decisions had had “unfortunate consequences”.

Sumption explained: “It has meant that English public law has not developed a coherent or principled basis for distinguishing between those questions which are properly a matter for decisions by politicians answerable to Parliament and the electorate, and those which are properly for decision by the courts.”

He argued that this had meant that over a period of time judicial decisions had brought about significant constitutional changes, which were not necessarily noticed or intended by their authors.

“It has also meant that the wider constitutional issues arising from judicial decisions, because they are not publicly acknowledged, are not matters of public debate,” Sumption continued.

“There is surely a case for saying that constitutional change, where it occurs, should happen on purpose and after proper national debate about its wider implications. It should not come about by accident and without any acknowledgment that it is happening at all.”