The coalition government’s attempts to limit the scope of judicial review is a poorly understood but hugely significant curtailing of the democratic process.
The USA – for all its (many) political flaws – has strict separation of powers. The one-person executive branch of President (& massive staff) cannot tread on the toes of the judiciary (the Supreme Court) or the legislative (Congress) except in very specific ways. It can be frustrating for a US President not to be able to pass much legislation and politics is done grindingly slowly. Few US citizens like politics for this very reason.
However, it’s the arrangement that keeps the judges separate from the legislators, separate from the leader that guarantees rights for the populace. The Supreme Court is the most powerful set of judges in the world. The judgements they make reverberate for a generation, and Presidents and Congress alike cannot hep but pay heed to what they have to say on issues as diverse as abortion law and gun control.
Britain too has much judge-made law. The decisions of cases heard in British courts set precedents for future judgements. Many of the crimes for which people are convicted are for transgressing Common laws – those whose authority originates in court judgements, rather than in parliament. British judges have some power, therefore. Crucially though, as the British parliament is the sovereign political authority what it says goes. No court, even the relative new-kid-on-the-block the British Supreme Court (2005) can ‘strike down’ legislation in the way it’s American cousin can. The very most British judges can do is declare that the executive – the government – has acted ultra vires – outside the powers parliament has granted for it.
The British government means the cabinet, with the Prime Minister at its head. As the MPs in the Commons are effectively under the thumb of the government, they are no barrier to executive power. Measly members of parliament – only elected by the people after all – cannot stand up to the might of the PM and his/her ministerial entourage. And so judges are the last line of defense for checking the ambitions of an out-of-control government, handing down dictatorial and unaccountable decisions, trampling the ordinary folk with their parliament-granted authority.
Judicial review is this last bulwark. Here a quick example.
“A High Court judge has granted permission for a judicial review of plans to build a waste incinerator in Beddington. Mr Justice Collins today ruled Green Party campaigner Shasha Khan could proceed with a legal challenge to Sutton Council‘s decision to give planning permission for the plant, which would burn 275,000 tonnes of rubbish a year. Mr Khan, of Croydon, will argue Sutton Council was influenced by its contract with waste disposal firm Viridor, developers of the incinerator, and applied incorrect planning policy.”
Enter Chris Grayling, Justice Secretary. He and the government argue that the number of judicial review cases is slowing down the efficiency of government. There are too many cases delaying decisions, the argument goes, and therefore stuff’s not getting done. Important stuff!
In addition Grayling argues that ironically judicial review is actually undermining parliament. In the example above, for example, Mr Khan is one person holding up the executive which is exercising (albeit at several removes) the democratic will of the people. And as a member of the Green party, he’s probably got political motives, cynics would suggest. So curtailing the number of judicial review cases, would actually be good for democracy. So the argument runs.
Grayling’s plans, thankfully, got a welcome slap-down at the hands of the Lords, packed as it is with lawyerly types not likely to have the wool pulled over their eyes and fiercely protective of the system as it exists. The vote went 247 to 281 against Grayling’s plans which would remove the power of judges to decide if specific judicial review cases could be heard. There is a chance that the idea will be pushed through again, but with the 2015 election looming it’s not a foregone conclusion.
During the debate former Lord Chief Justice Lord Woolf said:
“It’s too dangerous to go down the line of telling judges what to do.”
In truth it’s not telling judges what to do that’s the problem. It’s not allowing them to stop the government doing whatever they liked with no way of being meaningfully challenged. It would be profoundly undemocratic to allow it to happen, and it’s all the more shocking that a) the government would even try to do so in the first place, and b) it could so easily happen and so few people would notice.
And so there you are. Between the ‘good idea‘ and the ‘bad idea’ its hard to escape the ugly truth; that the government has barely disguised contempt for genuine democracy and trusts the electorate less than it is trusted by them.
British democracy is definitely a thing – it exists. But how it exists and whom it serves are constantly up for debate and renegotiation. If people are worried about distant men in suits removing their cherished liberties they would do well to start their examination a little closer to home.