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Lots of chatter about Lord Faulks' forthcoming report on judicial review.
It's fine to ask - and of course we do - questions about the proper limits to the judicial role. But we need to talk enough about the political context in which we come to ask those questions. THREAD.
It's fine to ask - and of course we do - questions about the proper limits to the judicial role. But we need to talk enough about the political context in which we come to ask those questions. THREAD.
I can't think of another democracy that is as vulnerable as ours to autocratic power. We don't have in any meaningful sense a constitution. Instead we have a five-yearly event that gives unconstrained power to the Commons.
The power is unconstrained because we lack a second Chamber that can constrain the Commons. We lack staged intakes of MPs that might offer checks to the absolute power flowing from that five yearly event.
And we lack a higher law, formed from norms crafted over a time horizon longer than five years, to which the Commons is subject. This is the basic reality of British judicial power: our judges are feeble and made so by the absence of a higher law that is theirs to apply.
Our substitute for a second House, staged intakes and a higher law is a tendency towards politeness. That is what that old saw about a 'flexible but muscular' constitution actually means. It means a Government can feel the pressure of cultural norms to "do the right thing'.
But we know it is only politeness that constrains the power of that five year event because the courts have told us time and again that Conventions are not justiciable: they are not things that judges can mandate adherence to.
And here's the rub: what happens if we have a Government that isn't inclined to be polite, to adhere to those cultural norms? What then?
This is the all-important context in which we should ask the question with which I started about the proper limits of the judicial role.
This is the all-important context in which we should ask the question with which I started about the proper limits of the judicial role.
Because Johnson is not inclined to constitutional politeness.
The clearest way to make this point is to point to the Prorogation. He asserted an absolute right to suspend the Commons when it got in his way - an act more autocratic by far than anything Trump has (yet) done.
The clearest way to make this point is to point to the Prorogation. He asserted an absolute right to suspend the Commons when it got in his way - an act more autocratic by far than anything Trump has (yet) done.
But this disinclination to adhere to cultural norms isn't only seen in events like the Prorogation. We see it every day in, most notably at present, the cronyism and the contempt for good public administration that has characterised this Government's response to the pandemic.
I recall being alone amongst legal commentators in saying, when it happened, that Prorogation was clearly unlawful. And I began the challenge that succeeded in Scotland's courts and was upheld in the Supreme Court. (Our Anglocentric media has forgotten this strand of history.)
And I said that, not because I know anything about constitutional niceties (I don't) but because I perceived something quite important about the role of judges: if they would let the Prime Minister set the Commons aside as an inconvenience what would be left of democracy?
I believed (rightly as it transpired) that judges would feel bound to take upon themselves the task of protecting our conception of democracy.
They knew they would be attacked and that is why we got a unanimous decision: they saw a need to conserve their authority.
They knew they would be attacked and that is why we got a unanimous decision: they saw a need to conserve their authority.
The same is true today.
The real question judges ask themselves, a question thrust upon them by the disinclination of the Government to constitutional politness, is: if we will not guard against the conduct of the Government, and no one else can, then what is left?
The real question judges ask themselves, a question thrust upon them by the disinclination of the Government to constitutional politness, is: if we will not guard against the conduct of the Government, and no one else can, then what is left?
Judges today also seek to conserve their authority, which will mean (amongst other things) that this Govt will win cases a better Govt would lose. But ultimately judges cannot back down from a fight that is existential to our current conception of who we are as a country.
A Govt inclined towards constitutional politeness would not use the power of the Commons to weaken the ability of judges to perform that role. But with a better Govt the question would never arise because such a Govt would not force judges to exercise that role.
Faulks' review - and his past comments make me pessimistic about its outcome - is a profoundly dangerous moment for the country. We lack the checks and balances of almost every other democracy. If Government chooses to enfeeble our judiciary too I fear there will be nothing left.
