16 April 2024

Judicial overreach is throttling our democracy


To quote Ralph Waldo Emerson, ‘the louder he talked of his honour, the faster we counted our spoons’. A tiresome aspect of the political power grab by judges over the last couple of decades has been their indignant tone at any suggestion that their impartiality is less than pure. Any democrat would say that it is for Parliament to make the law and for the courts to uphold the law that Parliament has decided upon. 

You may have spotted that it hasn’t been working out quite like that in practice recently. Modern judges have decided to be more creative than their stuffy predecessors. Rather than follow what the law says in a boring old literal way, they have decided to interpret it creatively, as a ‘living instrument’. There has been much criticism of this ‘judicial overreach’ but if you give someone power, they will find it tempting to use it. The European Court of Human Rights has often allowed itself to be led into such temptation. 

Ultimately, Parliament has itself to blame. It passed a series of laws during the Blair/Brown era which emasculated itself. If Parliament wished to ‘take back control’ by reversing these laws, it could. But it hasn’t done so. Thus the power is with the lawyers – who have the satisfaction of telling us what to do without bothering to win our votes. 

One of the changes was the Human Rights Act 1998 which incorporates the European Convention on Human Rights into UK domestic law. 

The Government has got itself into a terrible tangle as a result. The Rwanda Bill says the courts must accept Rwanda is a safe country to deport refugees to, notwithstanding what the ECHR might think about it. But this seeks to reconcile two warring concepts: that both the ECHR and Parliament can be supreme. 

Will the law be upheld? Advice from Martin Howe KC and others declared

‘The Bill in effect crosses the Rubicon of overt defiance of Strasbourg Court jurisprudence. However, having taken that important step in principle, the cut-through is too narrow and limited for the Bill actually to lead with confidence to the delivery of the policy goal of making removals to Rwanda effective enough to provide a real deterrent to illegal arrivals into the UK’. 

For instance, there is the scope for individual appeals: ‘The restriction in the Bill is only against pursuing claims that Rwanda is unsafe for migrants removed there in general’. 

Also, before the flights depart those due to be on board could scarper:

‘The Bill leaves unaddressed other serious impairments to the removal scheme which arise from the application of Strasbourg Court case law, most notably case law on Article 5 of the ECHR which restricts the ability of the Government to detain illegal migrants except when their removal is imminent.’

But let us suppose that Rishi Sunak is right and that Howe et al are wrong. What if the Government is lucky and the legal fudge works? The broader issue will not go away.

Indeed. it is likely to get worse. Last week, the European Court of Human Rights decided it was going to start demanding tougher climate change policies. The judgement was against the Swiss Government but has implications for other ECHR signatories. The Sunday Telegraph reports that Céline Amaudruz, the Vice President of the Swiss People’s Party, the largest political party in Switzerland, has called for her country to withdraw from the ECHR. She said that the Swiss population was the boss, not a court in Strasbourg. 

Jessica Simor, a British barrister, who backs the challenge, said: ‘In Switzerland it’s particularly problematic because they have referendums. And one of the defences run by the government was, ‘We had a referendum on this, and the people decided they didn’t want it.’ Well, quite. 

As Lord Hannan argues:

‘Defenders of the ECHR almost never try to identify specific benefits that accrue to Britain as a result of our adherence. They know that, in the decades prior to 1953, we were not in the business of persecuting religious minorities or sending whole populations to labour camps.’

The former Supreme Court Justice Lord Sumption has joined calls for withdrawal from the ECHR. ‘The court is now much more than a judicial body,’ he writes in The Spectator. ‘It is a great factory for making law, which has become a legislative and political authority for the whole of Europe.’ 

Though once a ‘noble body’, it has become quite different: ‘In 1978 the Strasbourg judges proclaimed what they called the ‘living instrument doctrine’. According to this, the court claims the right to develop the convention by recognising new rights thought to be in the spirit of the original treaty although never envisaged in it.’ 

Those who defend our continued membership of the ECHR keep taking Churchill’s name in vain, as he was an early inspiration for the original concept. But it is ludicrous to infer he would approve of what it became. Would he have backed votes for prisoners? Or opposed deporting terrorists? Rather unlikely. 

Other reforms are also needed. Because it’s not just foreign judges who should be constrained from making up the law as they go along. 

Lord Neuberger, the former President of the Supreme Court, has told students in Cambridge of being able to ‘interpret’ statutes ‘and sometimes we interpret them quite, um, imaginatively’. 

Liz Truss has called for the Supreme Court to be abolished. She is right. The Human Rights Act, the 2005 Constitutional Reform Act (which established the Supreme Court and the Judicial Appointments Commission), and the Equality Act should all be repealed.

These may seem far-fetched ambitions. Truss has yet to persuade all her Conservative colleagues – though her successor has indicated he will contemplate leaving the ECHR if the Rwandan deportations are thwarted. There is, however, the other awkward matter that the Conservatives are expected to go down to a crushing defeat in the General Election. 

Yet eventually, the judges will overreach so much that the Parliament will get off its knees. Marxists used to argue that social democrat policies were a nuisance as they would postpone the revolution. Better to ‘speed up the crisis’ with unbridled capitalism and then the workers would get so poor and downtrodden that they would rise up. Of course, they hit a snag: the more capitalism we had, the richer the workers got. 

But perhaps that logic applies better to the judges. The judgment against the Swiss government has meant withdrawal from the ECHR has become a more mainstream position – here and on the Continent. Brexit came about because those who had previously supported our membership of the EU felt it had grabbed too much power. 

So one day, our constitution will be rebalanced. Our proud history of Parliamentary sovereignty and the rule of law will be reasserted. The more outrageous the judicial power grabs, the greater the demands will be for democracy to be restored.

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Harry Phibbs is a freelance journalist.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.