Winston Churchill once famously described the Soviet Union as “a riddle wrapped in a mystery inside an enigma.” In the same vein, he might describe the modern British state as a consultation wrapped in an inquiry inside a commission.

Last week, Anglo-Saxon proceduralism reached dizzying new heights, as the High Court struck down a Government consultation on reform of disability benefits. According to the Court, the consultation had been fundamentally misleading — ministers had presented reforms as a way to support disabled people into work when, in fact, the “primary rationale” had been cost-cutting.

In other words, the Government isn’t just prohibited from making policy that might adversely impact particular groups, it’s prohibited from even discussing policies, if a court determines that the terms of that discussion are inadequate. 

Regardless of your views on the Government’s plans to reform disability benefits, this is plainly absurd. Elected governments, with the assent of Parliament, must be able to act in the national interest. 

Fortunately, there is a growing recognition on the British right that our current constitution is entirely broken. Unfortunately, most proposals to fix the system are insufficiently radical. 

As a tonic to this self-imposed restraint, how about this? We should end judicial review.

This is not actually a terribly radical position. As recently as the late 1960s, judicial deference was the norm; there was an unspoken understanding that judges would not interfere with ministerial decisions, unless those decisions constituted a “jurisdictional error”. In other words, if ministers made decisions outside of their brief, courts would intervene — but if decisions were made within brief, judges would not interfere. Fair game to block new paperclip regulations made by the Minister for Pencils; but when it comes to pencils, the Minister can make whatever rules he wants to, provided that he’s empowered to do so by Parliament.

Since the Anisminic ruling of 1969, we have witnessed an enormous expansion of judicial power. In part, this has been driven by bad laws which confer absurd duties onto political decision-makers, particularly as regards equalities law, human rights, and climate obligations. 

But at the foundation of these duties is the belief that judges should have the power to substantively review ministerial decisions, and to overturn those decisions determined to be “wrong”. A new Act of Parliament, clarifying the boundaries of judicial review powers, would quickly put a stop to this — and should be coupled with reforms to our tribunal system, which is particularly responsible for blocking Home Office attempts to enforce immigration law. 

All of this is made worse by the regulators and quangos which now exercise regulatory power over large areas of our economy. Add deliberately obstructionist civil servants to the mix, and it’s no wonder that the new Labour government is finding it difficult to exercise state power.

A reversal of our judicial review orthodoxy, alongside civil service overhaul, would enable ministers to take the kind of steps now needed to rescue our country. Slash the quangos, end the judicial meddling, and flood Whitehall departments with political appointees — a Government willing to do these things in the first hundred days would usher in an unprecedented expansion in state capacity. All of a sudden, ministers would have incredible power over their briefs; powers currently sequestered in bureaucratic desks would sit in the hands of elected officials. 

If Parliament dislikes the decisions made by ministers, it can intervene to overturn them. If the public dislikes those decisions, it should vote accordingly. Ultimately, ours is a political constitution. We don’t need meddlesome judges poking their noses into the political process. 

Of course, journalists would catastrophize, civil servants would kvetch, and legal professionals would insist that this change would put us on the road to fascism. Sometimes, ministers would make bad decisions that might have been blocked by judicial review. 

If you want proof of concept, look no further than the fact that this is how our constitution used to work

But, in the end, the sky wouldn’t fall in. Things would basically be fine — and political decision-makers would actually be able to exercise political power. Expect to see fewer headlines about delayed reforms, frustrated planning applications, or blocked deportations; instead, we would see bolder public service overhaul, a building boom, and a Home Office that would actually be able to control the borders. If you want proof of concept, look no further than the fact that this is how our constitution used to work — this was the model which once made us the richest country on Earth.

You might not like this proposal; you might find it objectionable on optical grounds. But whether we like it or not, the truth is that we need to take radical action in the next decade to fix our country, or else risk more stagnation, more mass migration, and more political gridlock.

If it is to survive the century, Britain must rebuild the leviathan — and fast. It’s time to end judicial review.