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an appeals process: what sort of appeal court is controlled by the governing politi cal party? Other parties said that their mps would refuse to sit on it. As if to acknowledge these shortcom ings, the government appeared to back down as we went to press. It would, Mr ReesMogg said, bring about reform on a “crossparty” basis and break the link be tween Mr Paterson’s case and future cases. Today’s system is itself the product of the cashforquestions imbroglio in 1994 and the parliamentary expenses scandal of 2009. Yet the government is now disman tling it to wish away another moneyrelat ed scandal. Almost a quarter of the 59 back benchers who signed Dame Andrea’s amendment had previously been found in breach of parliamentary standards. David Cameron, the prime minister from 2010 to
The Economist November 6th 2021
2016, was recently hauled over the coals for lobbying on behalf of Greensill Capital, a fi nancial company that later failed. Yet the government has now protected yet another Tory mp who used his offi ce to lobby. The Paterson aff air looks likely to fur ther undermine public trust in politicians in general and Tories in particular. How will rich rewards for lobbying go down with the Conservative Party’s new work ingclass voters in northern constituen cies? That mps voted for the amendment by just 250 to 232, despite a government ma jority of 80 and a threeline whip, suggests many Tory mps are uneasy. Mr ReesMogg closed his speech by saying that “some times to do the right thing, one has to ac cept a degree of opprobrium”. The govern ment has just earned a great deal of oppro brium by doing the wrong thing. n
Judicial independence
Government v judges
Tory claims that judges intrude too far into politics are wrong-headed
M
inisters never like seeing their de cisions overturned. But in a rules based system, they must usually live with it. Yet Britain’s government has concluded that such reversals happen too often—and wants to change the rules to curb one pur ported cause, an obstructive judiciary. This raises constitutional concerns. Exhibit one is a bill now going through Parliament that seeks to curb judicial re views, in which senior judges consider the legality or otherwise of a public body’s ac tions. They have certainly become more common in recent decades. Ministers from both parties have at times sought to limit their scope or even stop them alto gether, partly to save money. The draft bill is actually quite mild. But it includes an ouster clause that would prevent judicial review of controversial immigration cases. David Davis, a former Conservative minister, opposes the bill for this reason. He fears that the ouster clause may become a model for obstructing review of employ menttribunal or socialsecurity deci sions. Yet some prefer to broaden the bill instead. Richard Ekins, an Oxford academ ic who runs the judicialpower project at Policy Exchange, a thinktank, says exces sive judicial review has led unaccountable judges into areas that should be decided by politicians accountable to Parliament. Some ministers agree. Dominic Raab, the lord chancellor and justice secretary, has criticised some judicialreview deci sions, notably relating to Brexit. He wishes
to stop the powers of Parliament being whittled away by what he characterises as “judicial legislation”. To this end, he wants an unspecifi ed mechanism to allow Parlia ment swiftly to “correct” what ministers deem to be wrong judgments. Mark Elliott, a Cambridge academic specialising in pub lic law, fi nds this idea deeply troubling, es pecially if it is done through secondary leg islation or applied retrospectively. Yet it is favoured by Suella Braverman, the attorneygeneral. In a recent speech she said judicial review was being used “as a political tool by those who have already lost the arguments”, and that litigation
must not be the continuation of politics by other means. She took aim at court rulings in two Brexit cases: one that the process for leaving the eu could only be started through primary legislation, the other nul lifying a prorogation of Parliament. It seems bizarre that law offi cers nor mally expected to defend the judiciary should attack it instead. It is also mislead ing of critics to claim that the judges in these two cases were trying to frustrate the Brexit referendum (the Daily Mail head lined its report on one “Enemies of the Peo ple”). In fact the judgments sought to bol ster the role of Parliament, supposedly a big goal of Brexiteers. A similar confusion besets another of Mr Raab’s targets: foreign judges. He wants not just to end any role for the European Court of Justice in Luxembourg, but to overhaul the Human Rights Act, which ob liges domestic judges to take account of rulings by the separate European Court of Human Rights in Strasbourg. But the echr’s role derives from the European Convention on Human Rights, to which Britain is a signatory (indeed, British law yers wrote most of the treaty). To withdraw would make Britain one of only two signif icant European countries outside its juris diction (the other is Belarus). David Gauke, a former Tory lord chan cellor, points out that gutting the Human Rights Act could, perversely, see more cas es going direct to Strasbourg. It would also send an unhelpful signal about the impor tance of international law. Britain has long been a fi rm supporter of the concept. Any reversal would be especially unfortunate at a time when countries such as Poland and Hungary are under attack for under mining judicial independence. This antijudicial agenda seems at odds with the separation of powers. Britain has never been purist about this (Lord Mackay, another former Tory lord chancellor, used to say he was its antithesis, as a judge serv ing in the cabinet and also a member of the legislature). But the British constitution broadly accepts that the legislature, execu tive and judiciary should be separate. If there is a problem, it is surely an over weening executive. Parliamentary scrutiny of government can be feeble. A good exam ple, as it happens, was the Brexit trade deal, which saw a treaty of over 1,000 pages rushed through with minimal debate (Tory mps have only just woken up to the impli cations for Northern Ireland of measures they enthusiastically voted for). Under mining international law and intimidating judges will hardly improve checks on the executive. Some 45 years ago Lord Hail sham, yet another former Tory lord chan cellor, talked of the risks of “elective dicta torship”. He had in mind a Labour govern ment, but his words may apply more to a Conservative one. n
