I’m one of the first to step up and say that Britain has a problem with Judges who assume that they are also political activists, that some judges interpret law for the benefit of criminals, illegal migrants and others whom the public may not be favourable towards. However in the British system where there are three separate sections, the legislature, the executive and the judiciary, it is the job of the judiciary to interpret laws passed by the legislature and enforced by the executive. In the British system judges also interpret laws based on legal precedent and look at how similar decisions have been dealt with by the judiciary in the past.
This system broadly works. It doesn’t work perfectly, sometimes decisions look perverse to the non-legal person and the legal system is complex and difficult and expensive to access. But it is a system that has taken hundreds of years and the input of numerous judges over the centuries to create.
The legal system as it is constituted at present does provide the opportunity for those resorting to it to challenge the legality of laws passed by the legislature and enforced by the executive. This system represents a safeguard for the British subject against possible future tyrants.
Unfortunately the current government, a government that I’m ashamed to say that I voted for, this centuries old system that was created by trial and error and some brilliant legal minds, is out under attack. The government wants the power to disregard rulings by judges under the Human Rights Act. The trouble is with actions like this is that although it may start out with it only being applied to the HRA, it may well end up being extended to cover other areas of legislation that a government may not be all that favourable to.
The correct way to deal with or replace the current Human Rights Act, which does seem to have its faults, would be to enact a law in Parliament, passed by both chambers and given Royal Assent by the Monarch that strikes out the law and replaces it with something that Parliament thinks is better. The judiciary can then look at cases brought under this law and interpret it in the light of the legislation itself or legal precedent.
This is somewhat of a tyrants charter and not a tool that I would want to be in the hands of any government whether that be a government of the left, the right or the centre. These proposals throw things like precedent out of the window. The law becomes whatever a minister says it is on a particular day with no way for the people via the Judiciary to say ‘hang on a minute’. Imagine for example this proposed law to strike out legal judgements in the hands of someone like Jeremy Corbyn or Margaret Thatcher or Tony Blair and you can get some idea why there is disquiet about it.
Yes of course the HRA has been faulty and is worded in such a way that it invites perverse judgements sometimes, but what the government want to do is throw the baby out with the bathwater by allowing ministers to overrule judges and their judgements based on the interpretation of the law. It’s better to replace the HRA with a publicly debated bill leading to an Act than to do this.
I would like to leave you with a short video by an excellent content creator BlackBeltBarrister who discusses this proposal and outlines his concerns about it.
For an alternative view on this:
https://www.spiked-online.com/2021/12/07/parliament-must-rule-not-judges/
Thanks for this. I’m aware that this is very much a two sides argument but I’m uneasy about where sidelining court judgements could lead. For example a judgement made in the courts that is pro free speech could end up being quashed by Ministers for political reasons such as needing to shore up votes from a particular community.
For ‘could end up’ read ‘would end up’, Josh. But I’m being cynical, I suppose…
Good point there. Give an authoritarian politician a weapon and they will use it
I have been thinking about this (a bit) and here are some thoughts.
Although I very much believe in the rule of law in the sense that no-one should be above the law, I also reflect on the fact that there is quite a lot of bad law about, for example the Hate speech laws.
When these laws were first introduced (way back when) they were not so bad, but the interpretation given to them by ACPO in its guidance made them prejudicial in application.
Now I would agree that the government could and should repeal such laws, but the point here is that that is very much a blunt instrument that does not allow for the possibility that a law was good but its interpretation bad (to put it simply).
Talks of checks and balances is all well and good, but if we go along with BlackBeltBarrister who has the power to provide the checks and balances to the Judiciary? One difference between the UK and US is that (AFAIK) the Judicial Appointments Commission (JAC) is independent of government, thus there are no “political” appointees to the Supreme Court which is one way a US administration can provide some check and balance to the Judiciary, as the arguments over the “Trump justices” illustrated.
Neither do I want a Country where every decision made by elected government is judisable, the people elect the government, but don’t elect judges and in a constitutional monarchy is the people who are the ultimate authority via the ballot box.
If judges can easily overturn licit actions of government through “interpretation” of the law then we no longer have a democracy, but a lawyerocracy. Great for lawyers, not so good for the rest of us.
All too often we see that lawyers see the law as a process, not a means for obtaining and upholding justice. I am thinking here of those (ironically named) human rights lawyers who use frivolous appeals and injunctions to stop the UK deporting foreign criminals convicted in a court of law of serious crime and who have no right to be here (in an old phrase they are “illegal aliens” as well as serious criminals).
The striking out of a judicial interpretation of a law does not state how the law is to be interpreted, at most it would be to state that such is how it is NOT to be interpreted; more probably it is just a wiping of the slate clean on interpretation. Is this so scary a power for an elected government to have?
Let us also remember that the legislature has a large number of lawyers in it, so it would not be unreasonable to assume that they would not vote for a measure that unduly restricted the powers of the judiciary.
So rather than be worried that this law would threaten democracy but which merely reasserts a part of the UK constitution, is not to be feared as undermining democracy, whereas the opposition to it by lawyers amounts to an attempt to reinforce a power-grab on their part in which we have increasingly seen the courts and judiciary assume the role of final arbiter of government policy. I cannot better Lincoln’s words, so I will repeat them here:
“If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court… the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”
In a democracy, the people are the ultimate rulers, not the judges.