May it please the court
Our elected representatives may finally wrest power back from the lawyers
“The Law is the true embodiment
Of everything that’s excellent
It has no kind of fault or flaw
And I, my Lords, embody the Law.”
The trouble with lawyers is when they take these lines from Iolanthe seriously. Indeed, at times they seem quietly determined to sideline elected politicians as far as possible, and demand that more and more parts of our political life become subject not so much to popular opinion as to the courts’ (or human rights lawyers’) ideas of legal propriety.
If you want to see the takeover process in action, cast your mind back to last year’s Priti Patel debacle. In case you had forgotten, Boris Johnson asked ministerial standards adviser Sir Alex Allen to probe complaints from Home Office officials about bullying by Priti Patel in breach of the (non-statutory) Ministerial Code. The report said there had been bullying, though possibly not deliberate; Boris read it and, on the basis that any wrongdoing had been unintentional, stood by his minister.
But whoever else had forgotten, the lawyers hadn’t. The Civil Service trade union demanded a judicial review declaring that Boris had misapplied the Ministerial Code. The government denied any misapplication, but more importantly argued that decisions whether the Home Secretary had misbehaved were the business of the voters and not the courts. Although the government won on the first point, it significantly lost on the second. Even if non-statutory, the court said, the Code was a series of rules like any other, and it had the authority to police it, even on a hyper-political subject like what to do about a minister accused of misbehaviour.
Courts should stand back and let majoritarianism kick in
This is worrying. In a democracy the demarcation between politics and law should on principle be simple. It is all very well for the law to intervene where governmental excess directly affects property and rights, widely defined; but once a case crosses the line and becomes essentially an argument about constitutional virtue, courts should stand back and let majoritarianism kick in. Yet, just as in the great prorogation case in 2020 where the Supreme Court set itself up as arbiter of constitutional propriety, here too the High Court essentially said that because the rules of political virtue had been committed to paper that gave it the power to intervene and second-guess the decisions of elected politicians. It should not have done so.
The fightback may, however, be beginning. The prorogation decision is rightly set to be reversed by the Dissolution and Calling of Parliament Bill. We don’t yet know what, if anything, will be done to return the process of disciplining ministers to the same realm, but there is perhaps a straw in the wind. In another interesting development on Monday, Dominic Raab floated the idea of an annual Bill in which parliament could reverse the effects of judicial review decisions which it saw as contrary to principle.
Perhaps unsurprisingly, this proposal has also reportedly been the subject of attack, again on constitutional grounds — this time on the basis that it amounts to an assault on the rule of law by immunising the government against charges of illegal action. But it is difficult to see that there is much to complain about here. Assuming that the annual legislation was passed by Parliament and was not retrospective, it can hardly be seen as constitutionally improper. Nor, having fairly aggressively extended the grounds for judicial review in the last twenty years to cover matters previously regarded as solely political, can the administrative lawyers really protest about an attempt by an impeccably elected Parliament to roll them back. The boundaries between administrative law and politics are not immutably fixed, and moves to shift them in favour of the latter are not automatically an attack on the rule of law.
The legal profession has not protested the indirect attack on the Human Rights Convention
If there are signs of a fightback by elected governments on administrative law, there is also another hopeful indication, this time on the human rights front. The background here is Meghan’s judgment against the Mail last week for breach of privacy. Many commentators felt this tilted the balance too far against press freedom and in favour of the rich and famous who sought to use the law to control what the press said about them, and argued for legislation to redress matters.
The difficulty here is that Meghan’s privacy claim was not based on English judge-made law. Instead it rested fairly and squarely on the provisions of the European Convention on Human Rights — notably the private life protection in Article 8, and the incredibly wide interpretation of that article by the overwhelmingly pro-privacy and anti-tabloid court in Strasbourg.
Yet Dominic Raab, presumably with the backing of No 10, has still openly suggested legislative intervention. True, cautious drafting could avoid some human rights shoals; moreover, the Strasbourg court itself is not politically unaware and may do its best to avoid a confrontation. But in the end there remains the prospect of a clash: a reference to Strasbourg by someone who felt their privacy infringed, followed by what would be a highly explosive finding that the UK was in breach of human rights by making speech too free.
Raab must realise this. Interestingly enough, however, his proposal has not met with a mass protest from the legal profession despite its being an indirect attack on the Human Rights Convention, something which previously lawyers have regarded with a kind of totemic awe. (Indeed at least one left-wing lawyer has himself joined the critics of the judgment.)
Whether this pro-free speech movement will succeed, and avoid the inevitable efforts of the liberal establishment to kick it into the long grass, is unclear. For once the odds may be in favour of taking back control — of rescuing at least one of our liberties from the hands of the lawyers and returning it to our elected representatives.
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