Let’s take back control from unelected rulers

Don’t laugh at the circus in Washington. Too much power is wielded in the UK without scrutiny

The elevation of Brett Kavanaugh to the US Supreme Court confirmed to many in Britain that America is a strange place. A Right-wing judge, who believes that presidents are immune from prosecution, was nominated by a president accused of serious offences. Despite allegations of sexual assault against him, Kavanaugh was confirmed in the Senate, where almost every vote was cast along party lines.

The politicisation of judicial appointments is common in America, a consequence of their understanding of liberal democracy. Fearing that democracy would cause a “tyranny of the majority”, the founding fathers ensured the separation of powers between the presidency, Congress and courts, and clear lines between federal government and individual states.

This is because “liberal democracy” is in fact the juxtaposition of two related but different concepts. Democracy gives the people their say, but its liberal prefix protects civil rights by constraining democracy through institutions, norms, laws, and, in America’s case, its constitution.

This is why the US Supreme Court is so important. It wasn’t Congress that granted American women abortion rights, but the Supreme Court. It wasn’t politicians who legalised same-sex marriage across all 50 states, but judges. And what those nine judges grant, they can take away, which is the reason why every Supreme Court appointment prompts political hysteria.

In Britain, few know our Supreme Court judges. They are appointed after an independent commission recommends the right candidate to the Lord Chancellor. And, despite our common law system, in which the law can change through precedent established by court rulings, and despite landmark judgments, like in the “gay cake” case yesterday, it is Parliament where our most important rights are debated and decided. Parliament legalised abortion in 1967, and permitted same-sex marriage in 2013. If the right to die is ever granted, it will almost certainly be decided by Parliament, not judges.

Issues that are difficult to resolve in America, like gun control, have proved uncontroversial in Britain. After the Dunblane massacre in 1996, Parliament tightened gun laws with sensible legislation. The death penalty was abolished in Britain in 1965.

But we are not above undemocratic legalism. Firstly, and rightly, we have our own checks and balances to prevent majority misrule. We have an unelected revising chamber, a fiercely independent judiciary and laws that guarantee minority rights. Increasingly, devolution forces the UK Government to work with mayors of English cities and the governments of Scotland, Wales and Northern Ireland.

But there are several ways in which, in Britain, the balance between democracy and its constraints has gone wrong. Undemocratic institutions are not only used to prevent the tyranny of the majority but to govern without proper democratic oversight.

We will soon leave the EU, but for the last 45 years we have given this supranational organisation the power to take more and more powers away from Parliament. Even after Brexit, with the Chequers plan – or the Chequers Minus we will probably end up with – we will face a democratic deficit as we abide by laws over which we will have no say.

Then there is the European Convention on Human Rights, to which we will remain signatories after Brexit. Through the rulings of the European Court in Strasbourg and the Human Rights Act, which instructs British judges to adhere to the European Court’s jurisprudence, the Convention has become our unofficial constitution. Just witness the British MPS who took British ministers to Strasbourg in cases heard by foreign judges.

But it is not only European courts and institutions that are the problem. We have over a thousand technocratic quangos that exercise power over us without scrutiny. We have hundreds of thousands of civil servants making policy and operational decisions daily without proper oversight. We have laws that bind future parliaments and delegate policy-making to unaccountable entities like the Committee on Climate Change.

We have a central bank that rightly remains independent, but which has created half a trillion pounds of new money through quantitative easing. After the crash, this was vital emergency medicine, but the social and economic consequences of the asset bubble it produced are profound. Yet the policy was implemented and extended with remarkably little debate, scrutiny or accountability.

There will, of course, always need to be a balance between democracy and the constraints we choose to put upon it, both to prevent majority misrule and to ensure efficient government. But the promise of Brexit, to “take back control”, was successful precisely because the public feels the erosion of democracy. So instead of laughing at the circus in Washington, policymakers in Westminster should look a little closer to home. Things have gone too far. It’s time to let the people – and their elected representatives – take back control.