It’s all Thomas Jefferson’s fault. In 1803 the newly-established Supreme Court of the United States issued an extraordinary ruling that it could in future decide which laws of Congress were constitutional and which were not. As power grabs go, it was unprecedented and has never been eclipsed since.
This could have set the stage for an almighty battle between the elected representatives of the people and the judiciary. Instead, Jefferson, the serving president, acquiesced. The court got its way and has ever since had the right to strike down laws agreed by members of the House of Representatives and the Senate.
Constitutionalists may argue over the benefits (or otherwise) of this particular power. On the one hand — assuming the constitution itself is a perfect document — it seems perfectly sensible to insist that every new law should adhere to its principles. On the other hand, this practice has led to the overt politicisation of the nomination process for the US Supreme Court, with conservatives and liberals opposing and supporting their preferred candidates who, once their appointment is secured, can be relied upon to interpret the republic’s founding document according to their own political outlook.
In Britain we have, thankfully, avoided such a situation, largely thanks to the establishment’s resistance to regular demands for a written or codified constitution. But that hasn’t prevented senior judges from over-ruling certain ministerial decisions down the years when their lordships have decided that this or that policy is outwith the explicit remit of the relevant Act of Parliament.
Few could oppose such a system. If a minister is acting ultra vires, then he or she is acting against the will of parliament as expressed in legislation, and if a senior judge won’t point this out, who will?
Still, there are suspicions that many of the judges making politically embarrassing judgments are themselves adhering to their own political views in the way they are interpreting the law. Which is why there have been reports of government plans to introduce an annual “Interpretation Bill” which would strike down court rulings with which ministers disagree.
This will be seen, inevitably, as another step on the road to dictatorship and the defenestration of an independent judiciary. But it’s an odd view of democracy that suggests a government has no right to change a law that is failing to deliver the outcomes ministers intended, whether because of court intervention or any other factor.
As we anticipate the outraged backlash, we may assume that many of the politicians and activist QCs who see their influence over government policy waning are the same people who have long placed their hopes for progressive reform in court interventions rather than in winning policy arguments at the ballot box.
One of the most consistent arguments used by Left wing campaigners in favour of a Remain vote in the 2016 EU referendum – and it is the same argument that recruited a previously sceptical Labour movement into the EU’s camp in the late 1980s – was that, since British electors kept electing right wing government, we should rely on activist judges in Brussels to impose the “right” kind of social policies on Britain against the will of voters and the government. Whether it was the length of the working week or environmental standards, the European Court of Justice and the European Commission knew far better than the elected government or the silly, reactionary people who voted for them, what was good for us.
It should hardly require pointing out that there is something profoundly undemocratic in such arguments – a point that fatally escaped the Remain campaign until it was too late: it is wrong to impose even the right policy on a country if it did not vote for it.
Now that we are out of the EU, the last hopes of rescue from the diktats of an elected government lie with the British courts. And to be fair, they have duly provided a series of rulings that have frustrated the will of ministers.
If the Interpretation Bill idea is to be implemented, such victories will become a thing of the past, until and unless a new government is elected to replace the current one (and even then, some of our social activist lawyers will inevitably find themselves in less agreement with our new overlords than they had expected).
But that is the point: the Left has become so disillusioned and defeatist that, just as happened in the late 1980s, it has all but given up on replacing the current crop of ministers and has invested too much of its hope in judges coming to the rescue.
Labour will probably, if its usual instincts prevail, oppose this new legal framework with all its energy. If it took a few moments to consider it properly, however, it might take a different approach. Some of its more experienced and senior MPs might actually consider how they themselves, once in government, might benefit from an annual Interpretation Act, and how they might prevent much of their own agenda being blown off course by the courts’ intervention.
Boris Johnson’s Conservatives did, after all, win an election and therefore have the legal and democratic right to implement the policies they reckon are best for the country. They have the right, if a judge tells them they are going outside a particular law, to amend said law. If Labour oppose this principle, they risk looking not just like an opposition but as oppositionist, and not as a party that aspires to govern in its own right, using all the same weapons, levers and tricks that are available to their opponents.