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And on judges making “political rulings” the Begum case (just discussed on @BBCr4today by Richard Ekins of @judicialpwr) is an example of why the concept is incoherent. https://twitter.com/georgeperetzqc/status/1284234297608724481
The judgment is here https://www.bailii.org/ew/cases/EWCA/Civ/2020/918.html.
Essentially, the issue arose because Parliament has provided both for citizenship to be taken away by the Home Secretary *and* for there to be a full right of appeal against that decision to a court, which can overrule the Home Sec on the merits.
So when Ekins says Parliament intends the Home Sec to have power to take citizenship away and therefore to deny people a right to return to the U.K. he’s right. But it is equally right to say that Parliament intended there to be an effective right of appeal.
The facts in Begum were that the first instance Court had decided (a finding that was not in issue before the Court of Appeal) that she had no effective right of appeal from where she was. She could not instruct lawyers. She could not respond to points made against her.
So you had a clash between things, both of which Parliament wanted: non-return of possibly dangerous people; and effective rights of appeal. One had to give way. Which one?
Critically, *either* choice would have been “political” (if that adjective means anything): denying someone their right to an effective appeal when the statute says they should have a full right of appeal is also a “political” choice.
So this is a good example of the ultimate incoherence both of the current government’s persistent complaints about “political” rulings and of much of the Judicial Power Project’s approach.
Ultimately, what they mean by a “political” judgment is one that disagrees with the executive, or one that disagrees with assertions of executive power.
So when the current government mutters about curbing “political” rulings, what it really means is curbing the ability that we all have as citizens to challenge in court its interpretation of the powers that Parliament has given it and of the rights that Parliament has given us.
