The Velvet Gavel:

How the UK Judiciary’s “Jurisprudence of Suggestion” Creates a Gulf Between Law and Public Trust

When judiciary issues judgments that sound like commands but dissolve into non-enforceable declarations, the public sees not justice but performance in Court. The judiciary speaks in the imperative, yet acts in the subjunctive—leaving citizens bewildered by the gap between language and law. This is the quiet crisis of the declaratory judgment, a sophisticated legal tool that, in the glare of public scrutiny, can appear as an act of judicial hypocrisy. Can the court give a direction to the Prime Minister of UK as suggested in the following fictionalized version:

In an era of political turbulence and eroding trust in institutions, the role of the judiciary has never been more critical. Citizens look to the courts as the final arbiters of law and the ultimate guardians of constitutional order. They expect clarity, finality, and, above all, authority. Yet, a peculiar and increasingly prominent feature of the British legal landscape threatens to undermine this very expectation. It is a phenomenon where the highest courts in the land deliver rulings that are directive in form but merely declarative in law. They adopt the language of command while deliberately withholding the power of enforcement.

This creates a profound disconnect. To the layperson, a judicial pronouncement that the government “must” do something is understood as a direct order, backed by the full coercive power of the state. When that “must” is later revealed to be a constitutional suggestion—a statement of legal principle rather than a binding decree—the reaction is often one of cynicism and confusion. The court appears to have spoken truth to power, only to retreat at the moment of consequence. The gavel falls, but the sound is muffled, wrapped in the velvet of judicial restraint. This is not the jurisprudence of enforcement; it is the jurisprudence of suggestion, a genre of rulings that shape headlines but not handcuffs, offering moral clarity without legal closure. This essay will explore the nature of this judicial practice, its constitutional underpinnings, its manifestation in key cases, and the corrosive effect it has on the relationship between the judiciary and the citizenry it serves.

The Illusion of Mandate: Understanding the Declaratory Judgment

At the heart of this issue lies the declaratory judgment, a legal remedy distinct from coercive orders like injunctions or damages. A declaration, in its purest form, does not command a party to act or refrain from acting. It does not impose a penalty or compel a payment. Instead, it simply declares the legal rights, duties, or principles applicable to a given situation. Its purpose is to provide certainty and resolve legal disputes before a concrete wrong, necessitating a coercive remedy, has occurred.

The modern declaratory judgment has its roots in the Court of Chancery and was formalized in the late 19th century. It was conceived as a flexible and preventative tool, allowing parties to clarify their legal position without having to breach a contract or violate a statute first. As Lord Diplock explained, its development was “one of the most important procedural reforms of this century,” enabling the courts to offer “a ruling upon a disputed question of law or construction, without the need to couple it with any coercive order.”

However, the utility of this remedy becomes complicated when it is deployed in the high-stakes arena of public and constitutional law. When the dispute is not between two commercial entities but between the citizen and the state, or between different branches of government, the court’s declaration takes on a different weight. Here, the judiciary is not merely clarifying a private contract; it is pronouncing on the limits of executive power or the sovereignty of Parliament.

In these contexts, the court’s choice of language becomes paramount. A judgment stating, “The court declares that the Minister’s policy is unlawful,” is a clear statement of legal fact. But a judgment phrased as, “The Prime Minister must obtain Parliamentary approval before acting,” reads like a direct command. It uses the imperative mood, the grammatical form of an order. The public, conditioned to understand “must” as a non-negotiable obligation, hears a decree. Yet, legally, it remains a declaration. No bailiffs will be dispatched if it is ignored; no minister will be held in contempt of court. The “must” is a statement of constitutional propriety, not a precursor to a prison sentence. This is the illusion of the mandate—a powerful judicial statement that carries immense moral and political weight but lacks the iron fist of legal enforcement.

The Constitutional Tightrope: Separation of Powers and Judicial Restraint

Why would the judiciary engage in such a delicate, and potentially confusing, linguistic dance? The answer lies in the foundational principle of the UK’s unwritten constitution: the separation of powers. While not as rigidly defined as in the United States, the doctrine holds that the three branches of government—the legislature (Parliament), the executive (the Government), and the judiciary (the courts)—should operate within their own distinct spheres, providing checks and balances on one another.

The judiciary is acutely aware of its position within this constitutional framework. Its role is to interpret and apply the law, not to make policy or run the country. A direct, coercive order against the executive or Parliament would be seen as a significant intrusion into their domains, a potential trigger for a constitutional crisis. For a court to issue an injunction compelling the Prime Minister to act, or holding Parliament in contempt, would be to cross a constitutional Rubicon.

Declaratory relief offers a way to walk this tightrope. It allows the courts to fulfill their duty to “say what the law is” without directly challenging the authority of the other branches of government. By issuing a declaration, the court shows profound respect for its constitutional partners. It operates on the presumption that the executive and the legislature are, like the judiciary, bound by the rule of law and will act accordingly once the law has been clarified. The declaration is a signal, not a sanction. It trusts that a government, told its actions are unlawful, will voluntarily correct its course.

This deference is not a sign of weakness but a calculated act of institutional self-preservation and constitutional respect. The judiciary’s authority is ultimately moral and intellectual. It has, as Alexander Hamilton famously noted, “no influence over either the sword or the purse.” Its power rests on its perceived legitimacy and the willingness of the other branches to respect its judgments. By choosing the path of declaration over coercion, the courts avoid a direct confrontation they might not win, preserving their capital for future, perhaps more critical, battles. It is a pragmatic choice, born of a deep understanding of the delicate balance that sustains the British constitution.

Case Studies in Suggestion: Directive in Form, Declarative in Law

The “jurisprudence of suggestion” is not a theoretical abstraction. It is visible in some of the most significant constitutional cases of the 21st century.

R (Miller) v Secretary of State for Exiting the EU [2017] UKSC 5: The “Must” that Wasn’t a Command

Perhaps the most famous recent example is the Miller case, concerning the government’s power to trigger Article 50 to begin the process of leaving the European Union. The government argued it could do so using its prerogative powers, an ancient residue of monarchical authority. The claimants, led by Gina Miller, argued that such a move would nullify rights granted by Acts of Parliament and therefore required parliamentary approval.

The Supreme Court sided with Miller. The language of its judgment was emphatic. Lord Neuberger, delivering the majority opinion, stated that the government “cannot” trigger Article 50 without an Act of Parliament. The judgment summary declared that an Act of Parliament “is required” and that the government’s arguments were “inconsistent with” fundamental constitutional principles. The tone was unequivocal.

The media and the public interpreted this as a direct order. Headlines proclaimed that the court had “forced” the government to consult Parliament. Yet, the formal remedy granted by the court was merely a declaration. The court did not issue an injunction to prevent the Prime Minister from notifying the EU. It simply declared what the law required.

Had the government chosen to defy the court—an almost unthinkable political act—there would have been no immediate legal consequence. No contempt proceedings would have followed because no coercive order had been breached. The Supreme Court trusted Parliament and the government to play their constitutional roles. It set the legal parameters and stepped back, allowing the political process to unfold. The judgment was profoundly influential—it shaped conduct and led directly to the passage of the European Union (Notification of Withdrawal) Act 2017. But it did not, in a legal sense, compel it.

Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406: The Right to Know

This case concerned the rights of asylum seekers. The court was asked to rule on when a decision to refuse asylum support became effective. The London Borough of Southwark argued it was effective from the moment the internal decision was made and recorded. The claimant argued it could only be effective once it was communicated to the person affected.

The Court of Appeal delivered a powerful judgment on the importance of access to justice and the rule of law. Lord Justice Sedley, in a widely cited passage, stated that “notice of a decision is required before it can have the character of a determination with legal effect.” The court declared that rights must be communicated to be effective. The tone was corrective, a clear rebuke to the local authority’s administrative practice.

However, the relief was, once again, declaratory. The court did not award damages for the period during which the claimant was unaware of the decision. It simply clarified the legal principle. The judgment set a vital precedent that changed administrative practice across government, ensuring that decisions affecting fundamental rights are properly communicated. But it did so through clarification, not coercion.

James v Attorney General of Trinidad and Tobago [2010] UKPC 23: Acknowledging Harm, Withholding Remedy

The Judicial Committee of the Privy Council (JCPC), the final court of appeal for many Commonwealth countries and UK overseas territories, also employs this method. In James, the claimant had been subject to a mandatory death sentence, which was later found to be unconstitutional. He had spent years on death row under this unlawful sentence.

The JCPC issued a powerful declaration that his constitutional rights had been breached. The judgment acknowledged the profound psychological harm and “cruel and unusual treatment” he had endured. Yet, when it came to a remedy, the court refused to award damages. It declared the wrong but declined to provide personal, coercive relief in the form of a monetary award. The judgment served as a stern condemnation of the state’s actions and a vindication of the claimant’s rights, but the practical enforcement was limited. It was a moral victory, enshrined in a legal declaration, but one without a tangible, personal remedy attached.

Zavarco Plc v Nasir [2020] EWHC 629 (Ch): The Whisper of a Debt

Even in the commercial sphere, the distinction is crucial. In Zavarco, the High Court dealt with a case involving a disputed debt. The court clarified that obtaining a declaratory judgment does not extinguish the underlying right to seek coercive relief later. A declaration can affirm that a debt is owed, but it does not, by itself, allow the creditor to send in the bailiffs. It is a “legal whisper,” confirming the existence of a right. To enforce that right, the creditor must return to court to seek a coercive order, such as a money judgment, which can then be executed. This case neatly illustrates the two-step nature of the process: first the declaration of the right, then, if necessary, the application for its enforcement.

The Disconnect with the Citizenry: Breeding Cynicism and Mistrust

While constitutionally sophisticated, this “jurisprudence of suggestion” is fraught with peril for public perception. The average citizen is not a constitutional lawyer. They do not parse judgments for the distinction between declaratory and coercive relief. They read headlines, watch news reports, and hear the court’s seemingly unambiguous language.

When a court says the government “must” act, the public expects the government to be bound by that statement as if by chains. When they learn that the “must” is a matter of constitutional etiquette, the feeling is one of betrayal. It feels duplicitous. The judiciary appears to be engaging in a form of performative justice, striking a bold pose for the cameras before retreating to the safety of its chambers.

This breeds cynicism. It feeds the narrative that the elites are all part of the same club, engaging in a choreographed drama where the outcomes are pre-arranged. The court is cast not as a director of the constitutional order, but as a mere narrator, a Greek chorus commenting on the actions of the powerful without the ability to influence them.

This perception has several damaging consequences:

Erosion of Judicial Authority: If the public believes the courts’ orders are optional, their general authority is diminished. The power of all court orders, even coercive ones, rests partly on a public belief in their legitimacy and finality.

Increased Political Polarization: Politicians can exploit this ambiguity. A government “defying” a declaratory judgment can claim it is upholding the will of the people against an unelected judiciary, while its opponents can claim the government is breaking the law. The court’s nuanced position becomes lost in the political noise.

Discouragement of Public Interest Litigation: If potential litigants believe that the best they can hope for is a strongly worded suggestion, they may be less inclined to undertake the immense financial and personal cost of bringing a case against the state.

The judiciary, in its effort to be constitutionally proper, risks becoming publicly irrelevant. By speaking in a code that only lawyers and politicians understand, it creates a gulf between itself and the people it is meant to serve.

Conclusion: The Fragile Authority of the Velvet Gavel

The use of declaratory judgments in UK public law is a testament to the sophistication and subtlety of its unwritten constitution. It is a tool that allows the judiciary to uphold the rule of law and defend fundamental principles without shattering the delicate balance of power upon which the state rests. It is the velvet gavel—a symbol of authority that relies on persuasion and moral weight rather than brute force.

Yet, its very subtlety is its greatest weakness in the modern public square. In a world of 24-hour news cycles and social media outrage, nuance is a casualty. The judiciary’s carefully calibrated language, intended to show respect for its constitutional partners, is easily misinterpreted as weakness or hypocrisy by a public that craves certainty and decisive action.

There is no easy solution. A move towards more frequent use of coercive orders against the government would risk precipitating the very constitutional crises the judiciary seeks to avoid. It would politicize the courts and undermine their claim to be above the political fray. However, continuing with the status quo risks a slow, steady erosion of public trust, turning the judiciary into a respected but ultimately toothless institution.

Perhaps the answer lies not in changing the remedy, but in improving the communication. The judiciary, and the legal profession as a whole, must do a better job of explaining the nature and purpose of declaratory relief. Judgments could be accompanied by clearer public-facing summaries that explain why a declaration was chosen over a coercive order, framing it not as a retreat but as an act of constitutional faith in the other branches of government.

Ultimately, the “jurisprudence of suggestion” is a high-wire act. It depends on a shared understanding of constitutional norms among the governing elite and a reservoir of public trust. As political norms fray and public trust diminishes, the judiciary’s velvet gavel begins to look less like a symbol of sophisticated restraint and more like an emblem of impotence. The courts must find a way to speak clearly to the nation, ensuring that their judgments are understood not as editorials, but as the final, authoritative word on what the law is. Failure to do so will only widen the chasm between the judiciary and the people, to the detriment of both.

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