The judiciary: should it butt out of politics?
Boris Johnson is gunning for Britain’s judges, said The Guardian. Unhappy with what he regards as their increasingly political role, particularly with regards to Brexit, he wants to restrain their ability to hold the Government to account. The PM and his new Attorney General, Suella Braverman, reportedly have two reforms in mind. The first is to give ministers more of a say in judicial appointments. The second is to weaken the power of the Supreme Court – which ruled last September that the Government’s decision to suspend Parliament was unlawful – by placing parts of the royal prerogative off-limits to judicial review. Both ideas are “troubling”, aimed as they are at fettering the independence of the judiciary and weakening its power to challenge executive overreach. At best, this is a retrograde step. At worst, it’s “pure Trumpism: an attempt to remake the courts in Johnson’s own image”.
“No one is seriously advocating untrammelled executive power,” said Sir Stephen Laws in The Daily Telegraph. Ministers simply think that the balance of power between judges and elected politicians is out of kilter and needs adjustment. The reality is that judicial review does often disrupt politics in an unhelpful way by inhibiting decision-making and preventing our representatives from delivering on their election mandate. Uncertainty about the likely legal consequences of their actions often leads ministers to take the safe option of inaction. At other times, their opponents launch legal appeals simply to hold proposals up and exact concessions, thus using the courts for “politics by other means”.
There’s no denying that there is a problem with judicial review, said Jonathan Sumption, a former justice of the Supreme Court, in The Sunday Times. The courts have become too ready to challenge ministers in cases where they simply dislike the underlying policy. This creeping judicial activism “undermines the foundation of our democracy, which depends on an elected assembly being the ultimate judge of policy”. But this isn’t something the Government can fix on its own. “The problem is one of judicial attitudes. And you cannot change judicial attitudes by an act of Parliament.” Any attempt to curb the powers of the judiciary, or to select judges on the basis of their attitude, would prove ineffective and illiberal. This issue needs to be sorted out in conjunction with the judges themselves. “Heavy-handed government intervention can only provoke unnecessary rows and digging-in with heels, without in the end achieving much.”