Comment

The balance of power between judges and elected politicians needs to be reassessed

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'Political opposition to a government proposal is very likely, these days, also to involve some litigation'

The row over the deportation of convicted criminals to Jamaica together with the appointment of a new Attorney General who has expressed support for reforming the relationship between politics and the courts has renewed the controversy over judicial review.

The details of the deportation case are not yet clear enough to determine whether it confirms the need for reform; and government frustration with it would not be enough on its own. But what is clear is that there is a balance to be struck between ministers being politically accountable and their being accountable to the courts – and that at present there are good reasons for thinking the balance is too much in favour of accountability to the courts.

No one is seriously advocating untrammelled executive power. But figures as senior as Lord Sumption, the former Supreme Court Justice, Suella Braverman, the Attorney General, and Geoffrey Cox, her predecessor, have suggested some rebalancing is needed. This case is, if anything, strengthened by assertions that only the judiciary are entitled to say where the balance should be struck. The proposition that it is an attack on the independence of the judiciary for anyone else even to consider the matter is both worrying and clearly wrong.

There are three factors that suggest that judicial review can unreasonably inhibit politicians’ decision making and prevent them from delivering on their electoral mandate.

First, delay is a powerful political weapon. Politicians have only limited time to announce and implement change and have an opportunity to receive credit for it. Delay can be fatal to a policy or project. Judicial review applications, even unsuccessful ones, are an efficient tactic for causing delay. Political opposition to a government proposal is very likely, these days, also to involve some litigation designed principally to hold things up, increasing the pressure for political concessions, and thus using the courts for “politics by other means”.

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Second, there is the uncertainty and unpredictability in the courts’ approach to judicial review. On the legal front, when government is developing policy, it is often difficult or even impossible to know what is needed to avoid an adverse judicial review. The government needs to act within the limits of the law; but the rule of law also requires that ministers, like all other subjects of the law, are given clarity about the likely legal consequences of their actions.

The Human Rights Act and other rules that impose imprecise, abstract tests of lawfulness for executive action, or even for legislation, have the effect that often the only policy option that scores well on litigation risk is “do nothing”. The government does not lose all its cases, but even the existence of an arguable case can distort policymaking. There is, in practice, a substantial political cost for government from defeats in the courts. So litigation involves political risks that politicians may be reluctant to take. It is argued that the government always has the right to ask Parliament to reverse a decision with legislation; but the judgments of the courts sometimes in practice increase the political cost of that.

Thirdly, these imprecise tests often require a balance to be struck between the public interest and the interests of an individual litigant. It is the litigant who is before the court and protected by the law while the defendant public authority must defend both its actions in the individual’s case and the wider public interest – including the interests of potential beneficiaries of change. To give the courts exclusive control of balancing individual against public interests is to give them an essentially political task, to the likely detriment of the public interest.

The courts may have a useful contribution to make in that process, but they lack the information, expertise and democratic legitimacy to have the final say, either in theory or in practice. The government’s proposed Constitution, Democracy and Rights commission should bear in mind that it is not for the courts to second-guess the democratic process. 

Ways need to be found to ensure elected politicians are able to deliver on their mandate from the electorate, and to remain electorally accountable for whether and how they do that.

 

Sir Stephen Laws is a Senior Fellow at Policy Exchange

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