The dragging of Article 50 to the Supreme Court has focused attention as never before on the role of the judiciary in our constitution. But although the concerns of politicians and commentators are legitimate – I share many of them – it’s important not to focus exclusively on the courts.
Doing so would risk losing sight of the fact that the constitution is a complex thing with many moving parts, and that the problem – and thus, any solution – is very unlikely to come from any single part of it in isolation. In particularly, we ought to think hard about the role of legislators in creating the current situation.
Defenders of the expanding role of the courts in our constitution are quick to point out that it was Parliament that created many of the mutagens driving the changes that seem to be disempowering it: the European Communities Act, the Human Rights Act, putting the Sewell Convention into the Scotland Act; and so on. And although this argument often attempts to mask the role of activism on the part of elements of the legal establishment, that doesn’t make it wrong.
We can lift an example from the current furore surrounding the strikes afflicting Southern Rail. Chris Philp, a Conservative MP, has outlined proposals on ConservativeHome intended to make it harder for strike action to cripple essential infrastructure. Two proposals – an operational capacity floor and mandatory mediation – aren’t particularly eye-brow raising, but here’s the third:
“Strikes on Critical Public Infrastructure should be brought before a High Court judge to decide whether the proposed strike action is “reasonable and proportionate” when the impact of the strikes is judged against the workers’ complaints. Case law would develop, but under my proposal a strike that holds thousands to ransom for months over who presses a button to open a door would probably not be considered reasonable or proportionate.”
This is a textbook example of the sort of legislating that not only invites but almost requires the judiciary to carve out new constitutional territory for themselves. The legislature passes a broadly-worded bit of legislation, and then leaves it to the judges to distil it down into actual law.
Philp himself seems to acknowledge this. He writes that “case law would develop”, but implicit in that is that it would be developing not from narrow rulings on detailed legislation but from the initial judgements of courts which would have an almost blank cheque to decide – or to ‘discover’, in the pretty language of legal humility – what “reasonable and proportionate” actually meant.
Indeed, Philp can only say that such judgements would “probably not” be at variance with his own. This is a strange thing to leave to chance, and not only because his own assessment of the need for action against the strike is the entire point of the policy.
No, also because if they came to a different conclusion then the hand of the strikers would be immeasurably strengthened. The concerns of MPs representing their constituents, as Philp is doing, would likely count for much less in public opinion once a strike had been officially ruled “reasonable and proportionate”. Unless judges were to regularly refuse rulings – which it seems very unlikely the proposed system is likely to intend or permit – then one side of any such dispute would receive what amounts to official good guy status from the outset.
And of course the judiciary doling out the white hats would remain entirely independent and free from direct political influence. So we have no way of correcting course once they start creating a “just strike” doctrine we disagree with, save the constitutionally proper but politically difficult step of officially re-politicising something which was always, properly, a political issue.
As I wrote on ConservativeHome, the continuing fallout from the Leveson Inquiry should be an object lesson in the perils of MPs trying to farm out difficult decisions: the Government is now caught between defying the rulings of an ‘impartial’ process or forcing the British press to submit to a ‘self-regulator’ with no significant voluntary members whose name, ‘Impress’, is literally a historical word for conscription.
And who chose the ‘self-regulator’ no major newspaper has self-chosen? The Press Recognition Panel, another ‘independent’ group. A cursory inspection of the people behind Impress reveals a clear political slant, if not an outright agenda, yet actual politicians have reduced their role in the process to a simple (but not easy) yes or no to decisions made by putatively apolitical people bodies.
And saying no looks, to a lot of the public, a bit political – which is not a great look when the very act of setting up all these inquiries and panels gives the strong impression that the decision isn’t a political one at all, but one where impartial experts can reach a correct answer.
Not only does this lead to more and more decisions ending up in the hands of people whom press and public under-scrutinise and nobody elects, it also sets ever-narrower limits on what is deemed to be properly a subject for political debate.
This excludes people whose views fall outside that band, generating resentment which may eventually boil over – as it did during the EU referendum, when the public voted to drag a huge range of delegated issues, immigration most prominent amongst them, back into the domestic political sphere.
This country has endured industrial militancy before, and administered tough medicine. But Margaret Thatcher’s approach was the opposite of ducking accountability: her Government passed specific laws to limit the capacity for damaging strikes and held the unions accountable for breaking them. Today’s MPs, especially those concerned about the health of Parliamentary government, would do well to learn from that example.
