Held to account

The last 40 years have seen an explosion in judicial review. The courts regularly quash government decisions on the basis that they infringe broad principles. Those principles are sometimes rights under the European Convention on Human Rights (ECHR) incorporated into UK law by the Human Rights Act 1998 (HRA), but sometimes the courts invoke other broad principles laid down by statute (such as discrimination and environmental protection) and sometimes broad common law principles (essentially made up by the judges), such as fairness or maintaining access to justice.

Support for that explosion has become axiomatic on the left. That is largely because judicial review has often been an effective way of driving governments in a more socially liberal, pro-environmental direction than the political process would otherwise have pushed them. The temptation on the left has been not to worry too much about the democratic objections to judicial review but just to sit back and enjoy the results.

But in the last few years, darkly-funded right-wing think tanks – in particular Policy Exchange’s Judicial Power Project – have deployed their ample resources to carry out reams of analysis complaining about an alleged power grab by the judiciary at the expense of democratically elected politicians. That investment has borne fruit, as more or less the same right-wing politicians and journalists who campaigned for Brexit now intend to turn their firepower not just on the HRA but on judicial review more generally. That intention was given shapeless but menacing form on page 48 of the 2019 Conservative manifesto, which threatened to ensure that judicial review is “not abused to conduct politics by another means or to create needless delays” and to “examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates”. This threat needs to be taken very seriously, not least because it is cloaked in language that is calculated to appeal to the left and to precisely those voters to whom Labour needs to appeal: the language of democracy and trust.

In the face of this threat, those on the left who – like me – support the power of judges to scrutinise and overturn the decisions of elected politicians, or bureaucrats ultimately employed by such politicians, need to tackle the Conservatives’ line of attack head on. It is not enough simply to fall back on the claim (which we all share) that all government decisions should respect principles such as human rights, environmental protection, rationality, access to justice, and fairness. These principles are broad ones, where there can be genuine and honest argument about whether they have been breached in any particular case, or whether the breach is acceptable in order to achieve other public policy goals, or about what should be done where those principles conflict (as they often do). Indeed, in most cases that get before a judge at all, there will be reasonable argument on both sides. Nor is it enough to point to the fact that judges often come up with answers that we like. The challenge is to explain why it is unelected judges that should decide such questions rather than democratically elected politicians answerable to parliament or to their own electorates.

One bold answer to that claim was provided by Lady Hale in the 2018 case concerning Northern Ireland abortion rights, where she defended the power of judges to declare aspects of abortion law to be incompatible with the ECHR by claiming that the case raised a matter of “fundamental human rights on which, difficult thought it is, the courts are as well qualified to judge as is the legislature. In fact, in some ways, the courts may be thought better qualified because they are able to weigh the evidence, the legal materials, and the arguments in a dispassionate manner, without the external pressures to which legislators may be subject.”

That answer should cause any socialist – or indeed anyone who believes that important decisions about public policy should be made through an accountable political process – to hesitate. The most obvious “external pressure to which legislators may be subject” is that of democratic accountability to their voters. And the claim that the acceptability of a prohibition on abortion in certain cases should be decided not by politics but by “those able to weigh evidence, legal materials, and arguments in a dispassionate manner” is a claim that sounds more at home in Plato’s Republic than it does in the thinking of anyone who places themselves in the tradition of the Levellers and Chartists. After all, among those most likely to be “passionate” about such an issue, and to wish to subject their MPs to ’external pressures’, are those women whose rights to abortion were at issue in that case. Nor is Lady Hale’s answer much more attractive if you explain that the next Labour government will make the judiciary more diverse and representative: that is very necessary, but since members of the judiciary are – by virtue of being lawyers – by definition not representative in any sense that a democrat would recognise, it does not address the democratic objection.

A central problem here is that much of the theoretical defence of judicial review of government action, especially on human rights grounds, comes from a liberal tradition (in particular the social contract tradition) that tends to see rights protection as logically prior to democracy and democratic accountability, and which sees the entrenchment of human rights protection – enforced by judges and insulated against the actions of democratically elected politicians – as an essential bulwark against democratic ’abuses’ (in particular, to protect property and the free market, as in the case of writers such as Hayek and Nozick). It is of course true that other liberals in that tradition – most famously, Rawls – are less concerned by property rights and more inclined to support the protection of rights and principles that are more congenial to the left: but even there, the rationale for judicial control of elected politicians’ decisions on the basis of general human rights principles is, ultimately, that those rights are prior to, and trump, democratic decision-making and therefore have to be protected against democracy by impartial and unaccountable judges. In the hands of Dworkin – a major influence on many lawyers at law school – that tradition turns into the contention that there is a single right answer to human rights claims, discoverable by an impartial, almost heroic, judge. The road from Dworkin to Lady Hale’s pronouncement is a short one.

The difficulty with that way of thinking for those outside that liberal tradition is that it sets up judicial review of political decision-making as a hard constraint on political action imposed and maintained by a legal elite. But those in socialist or republican traditions tend to reject the individualistic assumptions that lie behind social contract theory. For them, the claim that unelected judges should be able, in areas that are often matters of genuine and deep political controversy, to set limits to the decisions that can be taken through the democratic political process looks (or should look) problematic. If you believe – as most on the left, especially those influenced by the republican tradition, do – that important public policy decisions should be taken through a process of democratic politics and debate, in which citizens engage with each other in order to reach collective decisions that have legitimacy, what is the justification for giving a small group of inevitably unrepresentative people the power to overturn decisions taken by elected officials or those accountable to them on the basis that those decisions fail to comply with certain principles, where the application of those principles is often contestable?

The answer, in my view, is to see judicial review of governmental decisions not as a way of imposing boundaries on politics and on democratic self-government (the tendency in the liberal tradition) but to see it as a way of strengthening politics and the ideal of democratic government by setting up a form of accountability that is distinct from, but strengthens and complements, democratic accountability to elected politicians and voters. That is to say, judicial review ensures that government respects the commitments and standards that it has promised to respect, by applying a detailed analysis, in the particular case before the court, of whether the government has in fact honoured those commitments and standards. Moreover, it does so through procedures that put an individual (or group of individuals) who claims that the government has failed to meet those commitments and standards on, at least in principle, equal terms to the government. But also and critically, in our system – and in any future constitutional arrangements that the left should be comfortable with – judicial review is not the last word in determining the boundaries of the law, but is and should always ultimately be subject to democratic decision-making (that objective being currently secured in the UK by the doctrine of parliamentary sovereignty, to which the Human Rights Act is subject).

That defence of judicial review starts from the observation that democratic forms of accountability are incomplete. Politicians of all parties claim to honour human rights standards and principles of fair, competent and rational administration and to uphold them for all: but in practice, democratic forms of accountability are weak in holding them to that promise. Two broad types of failings can be identified.

‘Macro’ failings: in formulating policy and legislation, politicians inevitably pay attention to those who are necessary parts of their winning coalition rather than those who are not. Moreover, the democratic process has a limited focus: many ‘“technical’ areas of policy or legislation, in a complex modern state, get limited or no democratic scrutiny, and injustices caused by such policy or law that affect only a minority can and do persist for years, unnoticed and unaddressed (especially when addressing them costs money, would take ministerial focus or parliamentary time, risks annoying powerful vested interests, or the minority is thought to be unpopular). Finally, the use by governments of wide powers in ways that were not foreseen by parliament (the first Gina Miller case, on whether the prime minister could trigger Article 50), or even to suspend their accountability to parliament (the second Miller case, on prorogation), are failings that cannot effectively be addressed by democratic procedures, since they circumvent or subvert those very procedures.

Micro’ failings: the modern state involves countless individual decisions by bureaucrats, in areas such as tax, social security, immigration, and planning: such decisions only come near elected politicians on exceptional occasions, but can and do cause real injustice.

So it is not realistic to expect the democratic process – especially as flawed a process as we have in the UK, but probably any process – to ensure that the standards politicians proclaim will in fact be complied with. Nor can the democratic process deal with measures that circumvent or subvert that process itself.

Judicial review is, however, a powerful tool with which to address such failings. Starting with ‘micro’ failings, the system of administrative tribunals that we have is already a powerful force addressing routine injustice and poor decision-making in the areas of (for example) social security or immigration. On ‘macro’ failings, judicial review is, in principle, a powerful way in which minorities (or even majorities) adversely affected by a failure by government to live up to the standards of human rights, environmental protection, or good administration that it promises to uphold can force government to account for itself in a process that forces transparency and reasoned argument. It can also force government to go back to parliament to get, honestly and openly, the powers that it wants, and even (as in Miller 2) to re-open parliament when it has shut it down for no reason that it is prepared to front up to.

That way of looking at judicial review provides, I believe, the right framework for the left to think about and defend judicial review. It is not that judges defend rights carved on tablets of stone, or laid down in a mythical social contract, against democratic decision-making: it is that judges defend the integrity of our democracy by holding government accountable for promises that it makes to us as citizens about equality, environmental protection, human rights, and standards of good government, and by forcing government to accept democratic scrutiny of the powers that it wants to take. But the reason why judges are well-equipped to do that is not because they are ‘better qualified’ but rather because they are independent, accessible to all (at least in principle) and act only on the basis of procedures that ensure transparency and sustainable reasoning.

A number of points flow from that way of thinking about judicial review.

First, it provides a way to turn the language of democracy against those who abuse it in order to attack judicial review. Fundamentally, that language, when deployed by the current government and their outriders in right-wing think tanks, is a fraud: their project is not about democracy but about weakening the accountability of the executive both to parliament and ultimately to the people. Their aim is to reduce the ability of the courts to draw attention to the use of executive powers in ways that fail to comply with standards that, on the other side of their faces, they claim to respect, or in ways that circumvent or subvert the parliamentary government to which they loudly proclaim allegiance. The so-called “Judicial Power Project”, which provides the intellectual substance behind the smoke and mirrors, is, in reality, the Executive Power Project.

In response to that fraud, the left needs to emphasise that judicial review is a tool of our democracy, not (ultimately) a constraint on it. Judicial review forces government to be accountable, in principle to all citizens, for the decisions that it takes, and forces it to explain how those decisions are consistent with standards and principles that it has promised to uphold. That point should be backed up with examples – from the Hillsborough campaign, through upholding equal rights for gay people and ending grossly excessive tribunal fees, to checking gross abuses by the Home Office – of how judicial scrutiny has played a key part in addressing failures in our politics. But the left also needs to explain – as a statement both of what is and what ought to be – that where judges conclude that a particular measure fails to respect human rights, or is inconsistent with other principles, or exceeds powers given to government, it is open to us – and should be open to us – as citizens, acting through our democratic institutions, to take a different view, or to grant the government the powers that it wants when it openly and honestly asks for them.

Second, as I have mentioned in passing a couple of times, the legitimacy of judicial review depends on access to it being genuinely open to all. That means a vigorous defence of open rules on standing and of the legality of ways (such as crowd-funding) of paying for public interest actions; it also means promising and prioritising – and even enshrining as a constitutional right – effective legal aid and assistance for all those seeking judicial scrutiny of government decisions that affect them.

Third, the issue of effective judicial scrutiny of government is not a mere ‘nice to have’ for the left, subsidiary to its wider economic and political project: it is essential. The left relies on the modern state as a mechanism to transform the economy and society: but the left cannot hope to win over those sceptical about the accretion of further powers to the state on which the left’s programme depends unless it can reassure them that the state, from ministers down to minor functionaries, is accountable to all the people that it serves and will uphold fundamental rights and principles. Democratic accountability cannot do that, on its own: rather, seen in the framework that I have set out, effective judicial scrutiny of government, open to all, is an essential part of accountability and good government in a modern state.

Fourth, fundamental principles of law, equality, environmental protection, good government, and human rights are not imposed on us by heaven or by a contract we entered into before we were born: they are for us, as citizens, to debate and shape. Judges, through their decisions, can and do inform us about those principles and draw problems in their application to our attention: but ultimately, those principles belong to us, not to the courts. That is why I think the left should avoid clutching its pearls when it is suggested that the ECHR (as interpreted by the Strasbourg court) should not be the be-all and end-all of our discussion of human rights. For a start, the ECHR is a fairly minimal baseline: but, even more seriously, it is not, and cannot honestly be claimed to be, the product of our own democratic discourse. The response to calls for a ‘British Bill of Rights’ – disingenuous though they often are – should be to take those calls at face value, and to think about a process in which, perhaps by means of citizens’ assemblies, we should together be shaping the fundamental rights and principles by which we want our governments to live for the 21st century in a new charter. Those could include rights to legal aid, rights to jury trial, rights to free health care, and others that are not adequately protected by the ECHR.

Indeed, such a charter could form part of a new constitution, amendable as in Ireland by referendum so as to ensure ultimate popular sovereignty and to avoid the US experience of pernicious judicial decisions that are in practice impossible to reverse. Such a constitution, shaped by a  popular decision-making process and subject to revision by referendum, could legitimately constrain parliament itself in relation to fundamental principles of law, equality, environmental protection, good government, and human rights. But such a constitution could go further, and improve our deeply imperfect democracy (powers for local government, reform of the House of Lords, proportional representation, strengthening parliament) in ways that the current government and its outriders, despite their conjuror’s patter about democracy and ‘trust in our institutions’, really have no interest whatsoever in pursuing.

Image credit: ChrisVTG Photography/Wikimedia