It was inevitable that the Government’s recent defeat at the Court of Appeal would end up getting dragged into the wider debate about the role of the judiciary in public life.
Commentators sympathetic to the Government’s concerns about judicial overreach have been quick to accuse the courts of once again sticking their oar into what should properly be a political decision. Those usual suspects who invariably downplay the political significance of a controversial judgment have likewise fanned out across Twitter to make the case that this is a perfectly proper ruling.
But in this instance, as far as I can see, the usual suspects are actually right. What tripped the Government up over Heathrow wasn’t a radical attempt to improperly integrate the Paris Agreement into domestic law. Nor was it even the creative judicial imposition of legally-binding environmental objectives.
The snare was actually procedural: the Department for Transport, acting on legal advice, neglected to fulfil the obligations imposed on policymaking by MPs in the Planning Act 2008. (The extent to which that advice should be criticised is hard to determine, given that the Divisional Court backed the Government.)
Once again, the root of the problem lies not with the courts, but in the bad habits our legislators have developed in recent years. Opponents of excessive judicial power will do themselves no favours if they start treating every setback as the product of conspiracy.
But the anti-conspiratorial case is not helped by the decision of the Good Law Project (GLP), the liberal lawfare outfit run by Jolyon Maugham QC, to stick their oar in. The GLP are openly trumpeting the Heathrow ruling as the basis for their new effort to force – their word – the Government to reverse a claimed ‘structural bias’ against renewable energy which is apparently baked into the planning system.
They claim that events, most obviously Theresa May’s last-gasp commitment to achieving what they call ‘Netzero’ by 2050, mean that the current National Policy Statement (NPS) is out of date. They demand that ‘the Secretary of State’ – which here refers to all three of George Eustice, Robert Jenrick, and Alok Sharma – therefore confirm that they intend to review them.
After the demand comes the threat, which comes in two parts.
First, the GLP declare that they will seek a court order declaring that it is “irrational” for the Secretary of State to decline to review the Energy NPS in light of changed circumstances, and that “the only rational decision for the Secretary of State is that it is appropriate to review all or part of each of the Energy NPSs [sic] for Energy Infrastructure now and that he must therefore do so”.
Should that fail, option two is to try and get a judgment to the effect that the current NPSs are actually unlawful, because they “operate so as to subvert the intention of Parliament in enacting the Netzero target in section 1 of the Climate Change Act 2008”.
If successful, this would be precisely what the Heathrow judgment was merely a portent of: abstract but legally-binding targets giving lawyers and lobby groups more and more opportunities to impose policy on the nation through the courts.
The impact of this on Britain’s already risible infrastructure decision-making processes could be severe. After all, if there’s one thing that a proper infrastructure investment plan needs it is long-term certainty. Yet the GLP’s assertion is that, at the crack of a judicial whip, ministers ought to be compelled to revise National Planning Frameworks which are less than a decade old – or have them ruled unlawful.
Nor would this be the only drag on policy. The Heathrow decision has highlighted how dilettante MPs, with an eye on their ‘legacies’, are not content with trying to lock future governments into sweeping commitments, but have also been setting snares throughout the actual process of policymaking. In so doing they are freighting the process with so many ill-defined requirements that it becomes increasingly difficult for ministers to navigate it without treading on legal landmines.
Taken together, and if left unreformed, these two processes hold out the prospect of future ministers being continually forced back onto a policy treadmill, running at an increasingly unrealistic pace, until the only chance of respite is to cave in to the demands of whatever gang of well-funded campaigners are harrying them in court – restarting the clock until the next challenge. The most likely result would be near-stasis, an outcome which suits deep greens and NIMBYs alike.
The alternative is for the Government to stop acting “irrationally”, to borrow a phrase from Maugham and co. We should quickly unpack that.
The legal definition of ‘unreasonable’ or ‘irrational’ here is not one you or I, as mere laypeople, might readily recognise. It is not simply a test that a politician is of sound mind. Instead they must be found by the court not to be behaving ‘irrationally’ in relation to the point at issue.
Since the courts decide what is within the range of rational responses open to the decision-maker, the implications of this invisible yardstick for review of ministerial decisions are obvious. The courts have steadily watered down the original version of the test – particularly when human rights are at stake – and the fact that the GLP can seriously allege that current energy policy is legally ‘irrational’ shows how far matters have deteriorated. (At the same time, it is important to remember that Maugham et al may well lose. The GLP’s track record is patchy, and successful irrationality cases few and far between.)
Add all of this together, and the net result is that successive parliaments have effectively laid a minefield for future governments and then granted lawyers and lobbyists, via the courts, increasing scope to prescribe how ministers navigate it.
There are already many reasons to be concerned about Michael Gove’s proposed constitutional review. If his ‘essay questions’ fail to encompass the role of Parliament and legislative practice in fuelling the very problems he aims to solve, it will be a pointless exercise.
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