Alexander Bowen is an MPP-MIA student at SciencesPo Paris and St Gallen specialising in public health, and a policy fellow at a British think tank.
In a decade or two what will we remember 2024 for?
The year of the American Caesar – or at least a primitive signore? sure. The year of the biggest anti-incumbent wave in contemporary history? Yep, memorable enough. The year that marked the end of the beginning of the second China shock as Made in China 2025 completed and Europe started shedding its high-value industries? Undercovered but sure, historians will remember it.
I would like here to provide my own submission for what we need remember 2024 for; the year we learnt the limits of judicialisation and the legal-state. It’s hard not to see why when (and despite it being years in the making) 2024 in the UK, Europe, and the US, was the worst case of omnipresent judicial-excess since contemporary jurisprudence first developed.
In Germany judges did what they ought never to do – ultimately bringing down the government. In ruling in November 2023, that the 2021 Second Supplementary Budget Act’s proposal to repurpose 60€bn in Covid-19 funding for the energy transition (a policy endorsed by both the elected government and Bundestag) was illegal they blew up both three years worth of budgets and a coalition agreement. In repeating the same trick again in legal advice to the Finance Minister, Christian Lindner, over his 5€bn repurposing of the gas price brake, they finalised the chain reaction that led to the Scholz’s government collapse and total destruction in an early election.
Now of course this is largely the fault of the SPD, after all without their support the fiscal rules the judiciary used to explode the government would never have taken on a constitutional characteristics, yet it still marks the bundesverfassungsgericht usurping the most basic function of government – the budgetary.
This is of course not unique to Germany with Birmingham experiencing similar. In March 2024, following the decision to declare bankruptcy the year prior, councillors were left with a fait-accompli budget cutting social care, homelessness services, road maintenance, child protection, all in the name of funding equality. That budget had in practice been forced upon the city through a decade of litigation that improperly allocated to the courts the role of the free market in determining whether catering was equivalent to bin collection, and in representing a near two-billion pound settlement improperly allocated to the courts the council’s role in setting budgetary priorities.
This is of course the same legal basis that underpinned Next’s employment tribunal that, in a year where 170,000 retail jobs were lost, found it was discriminatory to differentiate in pay between shop-work and back-breaking warehouse work despite the unsociability of hours and application ratios being dramatically different. It’s also the same basis that looks set to have judges add some £8bn to grocery bills during a cost of living crisis.
In Switzerland, 2024 was the year where the judicial system undermined not merely councils or parliaments but the foundational principle of the Swiss constitution, popular sovereignty itself. Swiss voters may have voted in 2021 against the CO2-Gesetz but 2024 was the year the ECHR decided that it knew best.
How did they do that? Well the court quite “reasonably” decided that, what ought to be best summarised as, the right to privacy and family actually protected citizens from the abstracted consequences of their state’s non-policies, all through the mechanism of an excessively warm balcony – a logical chain if you suppose that a country with eight times as many deaths from cold weather as warm is killing its citizens in insufficiently addressing its 0.09% contribution to warming in adopting one mitigation regime over the other.
Worst still the Court cited obligations under the Paris Agreement despite said agreement specifically avoiding the creation of any obligation of result, and neither the text or intention of the ECHR providing any real basis for it. It’s little wonder then that the FT ran “The ECHR needs saving from itself” as one of its lead opinion pieces post-KlimaSeniorinnen.
Of course the ECHR being used to set policy will not be news, given 2024 was also the year where courts more completely took from legislatures the ability to set migration policy.
Readers will of course be familiar with the UK Supreme Court’s decision, following evidence presented from the UNHCR that Rwanda was unsafe for refugees despite the UNHCR themselves resettling people from Libya to Rwanda and despite the sample size of non-refoulement being two people neither of whom were ‘refouled’, to rule the last government’s flagship Rwanda policy illegal, though they need be equally aware of Italy’s courts doing the same over their attempts at creating effective border control with the far more moderate Albanian processing model.
This abrogation of judicial prudence wasn’t limited to Europe and the UK either, conservative Republican-appointed judges overturned their own four-decade long precedent of Chevron deference – a precedent they had set to rebuke liberal Justice Ruth Bader-Ginsburg’s own attempt at seizing administrative power for herself. In overturning Chevron deference (the principle that when regulations are ambiguous – and they are always ambiguous – courts should defer to the reasonable interpretation taken by the expert agencies actually tasked with implementing them), the US Supreme Court has usurped for itself the power to set everything from fishing industry levies, to medical billing, to the rules governing Netflix.
And finally at the international level, 2024 was the year the UK decided to hand over both sovereignty of the Chagos Islands, and seemingly £800mn a year to Mauritius (the equivalent cost of training 21,500 nurses), all in the name of complying with international law. This is despite the fact that its decision is underpinned by declaring UNGA resolutions (even when states have protested and abstained) to form binding international law – despite the UN Charter itself making clear only UNSC resolutions do and despite the UK’s acceptance of ICJ jurisdiction explicitly excluding the Chagos case.
What is there then to be done?
Of course removing Keir Starmer, the only world leader who stills seems to cling to the idea that speeches and majority decisions dominate the geopolitical would be a start. Restricting the ECHR’s living instrument doctrine that enabled our present situation would be another, a Canadian style notwithstanding clause accessible to councils could help too. Tightening legal standards that gave rise to the switch from equal pay for equal work to equal pay for all work, and allowed for basic budgetary decisions to face judicial review, would also contribute.
Yet there is something missing in that approach – there needs to be something more fundamental if we are to sustainably deal with the issue of 2024. What we need I suppose looks something like a British equivalent of America’s Federalist Society.
Though it was America’s Federalist Society who ultimately bear responsibility for Chevron being overturned, the general template they provide, as a highly successful organisation pushing back against judicial-excess, is a real example. The think tank Policy Exchange is already doing good work in that regard with its Judicial Power Project as are Professors like Yuan Yi Zhu and Richard Ekins, but we must do far more to institutionalise it.
The shadow Justice Secretary, one Robert Jenrick, ought to be tasked with fulfilling that vision. Ultimately, challenging ideas at their source and helping those who agree, network and advance, is likely to have a far greater yield than any urgent question or tabled motion. Even better, it’s only what the “other side” has been doing for decades.