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Who should make the law? Is it politicians, who we elect? Or judges, who we don’t? One way of addressing the question is not so much to answer it as to explain it away – by claiming that since Parliament itself passed the Human Rights Act, there can’t be a clash between the abstract principles propounded in the Act and particular decisions taken by Parliamentarians that may flout them.
This side-steps the role of the European Court of Human Rights which, for example, has drawn from the general principle of freedom of torture the conclusion that there should be a ban on smacking.
Does that judgement really protect a human right, or is it meddling, rather, with a political matter – which should therefore be decided by politicians, who we can put in or kick out as we please (whatever our view on smacking may be)?
But even in circumstances in which the Court itself was not directly involved, “UK judges have reached decisions, sometimes with regret and sometimes with enthusiasm, which would have astonished those who agreed to our accession to the Convention,” as Lord Hoffman has put it, referring what what’s happened sincethe Convention rights on which the court rules were incorporated into law under the Act.
Even in cases in which neither the Act nor the Convention were cited, judges have occasionally, in effect, made law. The outstanding recent example was the Supreme Court’s verdict on prorogation in 2019.
Robert Buckland was too tactful to cite it during his second raid on judicial power – conducted under the cover of a recent speech on the rule of law. We wrote about his first earlier this year.
That first speech was largely about structures; in particular, the role of the Lord Chancellor. This second one concentrated on substance. So what’s so controversial, you may ask, about the rule of law? Isn’t it the foundation that supports any liberal democracy, and so politicians and judges alike?
Not exactly – or rather, not only, at least according to Buckland. He told his audience that “there is, I believe, some confusion about what the rule of law really means.”
“My worry, frankly, is that it has been the victim of conceptual creep, which leaves it open to hijack from politically motivated interests. The effect this is having is to set up a false dichotomy between the rule of law and parliamentary supremacy itself.”
“I want to restore what was at one time the very conventional thinking that parliament makes laws that give power to the executive and are checked by the judiciary,” he went on, concluding that “I would like us to end up in a position where the courts only read down legislation in cases where there is a clear and unarguable breach of the core components of the rule of law.”
Now it should be said at once that few Cabinet members would be capable of making a sustained piece of argument in the way that the Lord Chancellor did, and even fewer who might be willing to do so.
This was recognised even by some commentators who don’t necessarily support his view (see here, here and here). And it was essential for Buckland’s purposes to put a lot of thought into his lecture.
This is because his aim was to shift opinion not so much among the judges as within “the academy” – that’s to say, the place where intellectual trends and fashions in law-making are shaped. For there is a body within the academy which holds that the traditional view of it in Britain is mistaken.
It holds that there are core fundamentals – “the rule of law” – which over-ride Parliamentary legislation. The Lord Chancellor wants to restore “the very conventional thinking that Parliament makes laws that give power to the executive and are checked by the judiciary”.
Meaning what, in practice? ConservativeHome is told that there are four gradients in Buckland’s thinking. First, he is encouraging judges to look more closely at the acts of Parliament on which they draw.
That might mean, for example, studying Hansard more closely to ascertain the intentions of MPs and peers. Second, the Lord Chancellor was seeking to change culture through persuasion.
The third level of response is by means of appointments. Finally, there is reaction to bad decisions, and legislation which seeks to address problems. For example, there is a commitment in the Queen’s Speech to Judicial Review Bill which will “restore the balance of power between the executive, legislature and the courts.”
Buckland is determined to act on the recommendations of the independent panel set up to examine Judicial Review, which concluded that the asylum and immigration tribunal has been abused.
(Though it’s worth noting that the panel said more broadly that “our view is that the government and parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action.”)
Your ordinary voter might be baffled by the idea of what John Tasioulas, an academic quoted by the Lord Chancellor in his speech, calls “conceptual overreach” – by which a “particular concept undergoes a process of expansion or inflation in which it absorbs ideas and demands that are foreign to it”.
But he would quickly grasp the notion of judges making law rather than interpreting it – and the democratic deficit which this opens up. We believe he would agree with Buckland. So do we. But there is a sting in the tail.
Parliament shouldn’t be conflated with the legislature – the Supreme Court’s mystifying confusion in its prorogation judgement, which suggested that Parliament doesn’t also contain the monarch and the executive.
But what’s good for the Ministerial goose is also good for the backbench gander. If judges should look at what MPs say more closely, the latter should get a greater share of debate, in order to make their intentions more clear, and to set out the reasoning for them. That’s not easy when the Speaker is slapping down time limits.
In our Moggcast earlier this week, Jacob Rees-Mogg raised an eye at the claim that during recent years the powers of the executive have waxed and those of the legislature have waned.
The Leader of the House was right to say that changes haven’t been one way. When the Government has no majority, as after the 2017 general election, the legislature tends to assert itself.
And scrutiny is in some ways more effective than it was: for example, select committees are more assertive than they were a generation ago. Nonetheless, there has been a clear tilt within the legislature – away from the scrutiny of legislation in the main chamber and towards the appeasement of a lobbyocracy, through virtue signalling politics as the Ministerial payroll expands.
Reviving judicial respect for Parliament turns out to be inextricably bound up with reviving Parliament’s respect for itself – a challenge beyond Buckland’s remit, if not his reach.