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Supreme Court

I am, these days, a proud and happy royalist. Indeed, I am a partisan for constitutional monarchy – executives drawn from the legislature, a de-politicised head of state, and the rest of it are all well worth having even if your monarchy wouldn’t be quite the money-spinner the House of Windsor is.

But I used, in my misspent Liberal Democratic youth, to be a republican. This was mainly just part and parcel of the nebulous and incoherent leftism to which I subscribed in my early teens, but I remember – and have been reminded regularly in debates since – that the absolutely fundamental basis of my objection to Her Majesty was that an unelected head of state, no matter how limited their power, was ‘undemocratic’. This remains, so far as I can make out, the position of republicans today.

Which is strange, given that an awful lot of republican types appear far more relaxed about, or even favourably disposed toward, a far more real challenge to democratic government – the rise and rise of the judiciary.

In the course of my work for ConHome this week, I have come across two stories which amply illustrate my point. First, we have Jack Straw in today’s Times (£) describing the way that Parliament recently faced down the European Court of Human Rights over votes for prisoners. Strasbourg had indicated that the UK’s ‘blanket ban’ on prisoner voting contravened the 1951 European Convention on Human Rights, and that we could be liable for up to £143 million in compensation.

Now happily, Parliament simply stood its ground and the court, spying a very damaging confrontation with an elected government looming, backed down. We’re still not letting prisoners vote, and we’re not paying them a penny in costs or compensation either. Now, it seems fairly obvious that had the drafters of the declaration intended prisoner voting to be a human right, the British government that was involved in said drafting would not have continued to disenfranchise them. So how did we end up in Court?

Since the Times is behind a paywall, and to spare you traipsing off to the newslinks, I shall quote Straw again:

“The problem that the Strasbourg court has created for itself — and for us — over the years has therefore lain not in the terms of the convention, but in the way in which the court has stretched to breaking point the intentions of those nations that signed the treaty. It has sought to turn itself into a supreme court for Europe; but, unlike any other supreme court in the world (the US included), one for which no democratic override was available.”

The power that courts have to expand their power, and to wield it politically, is formidable. The United States Supreme Court ‘discovered’ its constitutional powers when they first ruled something illegal under the Constitution – a legally enforceable document.* It now regularly overturns legislation passed by the democratically-elected elements of the US government.

This is questionable enough, from a democratic point of view, in the United States. But at least in the US the political influence of judges is properly acknowledged – below the level of the Supreme Court, in many US states judges are elected. Even the Supreme Court is appointed by elected leaders, even if their tenure means that the legacies of old administrations tend to linger long after their president has slipped into history.

In the UK, judges have cultivated no profile in public awareness as political actors, and the public has precious little means to hold them to account. Yet they wield enormous, and expanding, power over the laws we live by. But we mustn’t just blame the judges for this – they have been aided and abetted by some lamentable tendencies amongst elected politicians.

Let’s take the Human Rights Act as the most obvious example. In his article Straw claims that the HRA is ‘not the problem’, and since he is a former Lord Chancellor and I am a history graduate I am more than happy to give him the benefit of the doubt on that. But if it isn’t the problem, a story in this week’s Daily Mail should leave us in no doubt that it nonetheless poses problems. The paper broke a story on Lord Neuberger, the president of the UK’s very own Supreme Court, describing the extent of the power that the HRA gives judges like him.

“We can give provisions meanings which they could not possibly bear if the normal rules of statutory interpretation applied,” said Neuberger, presumably whilst resisting the urge to twirl his moustache or stroke a white cat as he did so. “Parliament has written us judges something of a blank cheque in this connexion.” He goes on to explain that New Labour – ironically whilst removing this country’s highest court of appeal from Parliament, where it previously rested with the Law Lords – conferred a “law-making function on the judiciary”.

This isn’t just a Human Rights Act issue, though. Earlier in this parliament a feminist organisation called the Fawcett Society tried to take the government to court over the ‘gender impact’ of Osborne’s budget. Their case got thrown out, thank heaven, but that case does serve to demonstrate where this sort of constitutional development leaves political power: with niche activist groups which can bring cases, and with the judges who rule on those cases.

Yet my former republican comrades don’t tend – though I’m sure there are exceptions – to make much of a fuss about this, for all that it is a far graver democratic concern than the inability to elect a powerless national figurehead. Many of them actually favour a codified constitution, which is essentially this trend taken to its logical conclusion: rather than having the elected representatives of the people as the highest constitutional authority, instead elevate the views of one group of people at one point in time and let judges interpret the inevitable collection of broadly-worded, unobjectionable rights outlined in it as they please.

Perhaps it is because most republicans are on the left, and political judges – alongside special interest groups, unelected regulators, public health officials and so on – are very much in tune with the elite-facing style of much of the modern left. As I wrote for the Telegraph two years ago after the Supreme Court debacle over Obamacare, judicial activism can develop to the point where a country’s primary political arena is the legal system, with all the formidable barriers to entry that implies.

It also has a debilitating effect on development of a national consensus. It is important I think, agree with it or not, that same-sex marriage in Britain was legislated for by an elected government rather than imposed by a court. Progressives in the US have been trying to win in the courts rather than the public arena since before Roe vs. Wade, and as a result abortion is still a poisonous and polarising issue forty years on.

Standing up to Strasbourg is a good start. But we shouldn’t let a fixation on the ills of ‘European’ institutions blind us to the creep of judicial power at home. The idea that those who wield power should be accountable for it is the foundation stone of democracy. Either such responsibility should follow Lord Neuberger’s newfound power, or it should be removed from him.

*H/T to the comments for pointing out that Marbury v Madison, the case where the Supreme Court discovered its constitutional authority, was not the very first constitutional case to pass before it.

36 comments for: The rise of the judges is a failure of democracy

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