Government by judges

Part of the current Brexit drama is playing out in Court Four of the Royal Courts of Justice, probably 100 metres from my desk. That’s where the judicial review hearing Gina Miller vs the Prime Minister is being heard. 

But 23 years ago, when I worked as an MP’s researcher, this desk was much further from the political action – even though then, as now, a Conservative government was struggling with dicey arithmetic in the House of Commons.

Decisions on a general election or a vote of no confidence were more likely to be made in the Marquis of Granby, The Carlton, The Reform or The Red Lion than the High Court.

No front page screamed ‘Enemies of the people’.

It’s this change that has unsettled Lord Sumption, and which gave Lord Neuberger pause for thought. Sumption thinks this change quite wrong – Neuberger’s analysis, on show in ‘right to die’ case Nicklinson, is more nuanced.

On prorogation, Sumption found the prime minister’s actions ‘politically shocking’, but added this was ‘not legally shocking, and the courts are concerned with legal problems, they are not concerned with vetting the political judgements that are made by prime ministers. That is a matter for politicians to deal with, if they don’t like what the government is doing they have to bring the government down’.

There is a whiff of nostalgia in his thinking – for a simple world, with everything in its place.

But the drift of decision-making is from parliament to the courts, and politicians and party apparatchiks know it.

Take the Fixed Term Parliaments Act 2011. For good or ill, the act is the legacy of the constitutional tidiness the Liberal Democrats brought to the coalition government, and it is playing out in a complex way – seeming to alternate in helping or hindering government and opposition.

Maintaining or replacing a government is no longer a matter of simple arithmetic. In the 1990s you could make political calculations on an abacus – now you need a constitutional lawyer. Law has displaced convention.

More fundamentally, there is a queasiness in Westminster around decision-making, identified by Neuberger in Nicklinson. If parliament won’t properly consider the human rights of a person who is seeking the right to die, Neuberger noted, in future the courts might.

Further back, the Human Rights Act 1998, requiring laws to be interpreted, wherever possible, in line with the act, has been a check on political decision-making. Chancellors cut spending – and the results of their decisions are tested in court. Some cases the government wins, some it loses.

Knife-edge votes are uncivilised affairs in parliament – the queue of ambulances at the Members’ Entrance bringing sick MPs to vote was a disgusting sight in my time there. Court Four might be a more civilised environment in which to settle questions.

But if we decide we’re uncomfortable with the role of the courts in political decisions, there is much more to undo than the current political crisis. Over the past 20 years, it is parliament that has put the courts in the position of ‘meddling’ in our politics.