Interesting piece by @danny__kruger in this week’s Statesman. My attention was caught by this. 
The sentiment that politicians should take the decisions and make the rules is unobjectionable. But it begs the critical question. Which politicians? The executive alone? Or the executive acting with the approval and scrutiny of Parliament?
That was the issue at the heart of Miller 1 and Miller/Cherry. Miller 1: all agreed that the decision to trigger Art 50 was for politicians.
But was it for the PM on her own to bring to an end the panoply of rights conferred by EU law and the European Communities Act? Or was it for Parliament?
Miller/Cherry: did the PM on his own have power to shut down Parliament for 5 weeks with no reason given for that length of time?
Other cases are where Ministers use wide powers in ways that are unexpected or which affect people’s rights in ways not discussed in Parliament. In cases where the courts say “beyond your powers” they are really saying “go back to Parliament and get express power to do this.”
Again, the question isn’t “politicians or judges”: it’s “which politicians: Ministers or Ministers acting with the approval of MPs?”
Human rights cases: politicians have asked the courts to interpret all law as far as possible to comply with the ECHR, to stop Ministers making law that breaches the ECHR without express Parliamentary approval, and to point out cases where law breaches the ECHR.
In all cases politicians - through Parliament - have the last word.
The consequence of weakening judicial protection here isn’t that you give more power to “politicians”: it’s that you weaken Parliament’s (some politicians) control over the executive (other politicians). It’s not about democracy: it’s about executive power.
Finally, you have cases where the courts check that ministers have considered matters that Parliament has told them to consider; have followed fair procedures; in some cases that they have properly consulted those affected.
In those cases, the courts are ensuring that Ministers have behaved fairly; that they have taken into account things (eg impact on disadvantaged groups) that they have promised to, and that Parliament has told them to, take into account.
Later in his piece Kruger calls for “better elites”. I assume by that he means “better decision-taking”.
But good procedures (listening to those affected) and good reasoning (carefully thinking through and addressing the things you have to think about) lead to good decision-making. Cutting corners leads to bad decision-making.
The courts do a good job in helping to ensure that decisions that affect us all are taken fairly and are reasoned through. Weaken that protection and you won’t get “better elites”: you will get worse and more unfair decisions.
And there’s an important commercial aspect to that. Many parts of our economy are heavily regulated. And it is all subject to competition and environmental regulation. Investors in regulated sectors need assurance that regulation will be carried out fairly and reasonably.
Judicial review is a key part of that assurance. Cut it back and you weaken what is still a huge UK asset in encouraging investment: a stable legal regime and legal protection against erratic or arbitrary decision-making. An asset that we will need over the next few years.
Final thought: @danny__kruger calls for local government to have “greater autonomy and responsibility” and for “the empowerment of places”.
This is ultimately a call for Whitehall’s powers to be constrained. But who is to enforce those constraints against the constant political pressure in our system to centralise power in the hands of Ministers (the pressure that has got us to where we are)?
The only effective constraints are legal ones, policed by the courts. Cut back the ability of the courts to constrain ministers, and you weaken any attempt to decentralise power to local government.
Calling for the transfer of real power to local government is ultimately hollow if you aren’t prepared to put real legal constraints on Ministers: and that requires courts with the real ability to stop Ministers exceeding their powers.
Final final thought: this brilliant essay by Ferdinand Mount explains why @danny__kruger’s support for what is in reality an executive power grab is far from the philosophy of Burke. lrb.co.uk/the-paper/v42/…
It’s a philosophy of “terrible simplifiers”, disdaining (as Hobbes disdained) all ideas of checks and balances, nuance and distributed power. More Robespierre than Burke.
