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How the judges took back control Leaving the ECHR won't save the Tories

Can't or won't? (LEON NEAL/POOL/AFP via Getty Images)

Can't or won't? (LEON NEAL/POOL/AFP via Getty Images)


November 16, 2023   5 mins

The Supreme Court’s ruling against the Government’s Rwanda plan may have been a foregone conclusion, but the broader political fall-out was not. Even though the Supreme Court struck down the migrant bill without relying on the European Convention of Human Rights (ECHR) or the Human Rights Act, the decision is nonetheless bound to reignite the discussion about the ECHR — which is what kickstarted the British courts’ judicial review of the bill in the first place.

For years, critics of the ECHR have argued that the Convention and its handmaiden, the European Court of Human Rights, represent an unacceptable infringement on national sovereignty. Supporters of the ECHR, on the other hand, claim that it has been an important driver of social progress, helping to redress blind spots within the UK’s legal system.

In a way, both sides are correct. Consider the ECHR’s most important UK-related rulings — ranging from homosexual equality to journalistic freedom — and few would disagree that it has played an important role in strengthening the protection of citizens’ rights in Britain. Yet it is also true that the ECHR raises important issues over sovereignty and democratic legitimacy. Should a supranational court have the right to decide whether a certain bill, approved by an elected parliament, passes the ethical and moral litmus test?

It is, though, a mistake to treat the ECHR in isolation, as its critics do. For the same question could be asked of any national court, including the Supreme Court itself. The influence of the ECHR is only one part of a much bigger story: the wider judicialisation of our political and democratic systems.

Over the past few decades, an unprecedented amount of power has been transferred from representative institutions to judiciaries, transforming national and supranational courts into full-blooded political and decision-making bodies — and giving rise to a new type of political regime altogether: what some have called juristocracy. As legal scholar Ran Hirschl wrote as far back as 2004, from matters of national security to macroeconomics, “courts have become crucial for dealing with the most fundamental questions a democratic polity can contemplate”. The view that “nothing falls beyond the purview of judicial review”, as Aharon Barak, the former Chief Justice of the Supreme Court of Israel, said, has become widely accepted.

As a result, it has become standard practice for core political decisions relating to the very essence of public life — such as immigration policy — to be taken by courts and judges. Questions that ought to be resolved through public deliberation in the political sphere are increasingly being settled behind closed doors by a self-selecting judiciary elite. Power has been delegated away from elected bodies and towards technocratic institutions — not just courts but also quasi-autonomous administrative bodies within the state, as well as supranational political-economic institutions such as the European Union. This process of judicialisation has disrupted the equilibrium between the various branches of government, and the fundamental principle of the separation of powers, transforming judiciaries into de facto legislators, at the expense of democratic deliberation.

In this sense, critics of the ECHR are right to claim it usurps the functions of democratic institutions, just as the EU does. As the former Supreme Court judge Jonathan Sumption recently made clear: “The [European Court of Human Rights] is now much more than a judicial body. It is a great factory for making law, which has become a legislative and political authority for the whole of Europe… It is political because many of the issues which it decides are matters of political judgement on which states can legitimately differ.”

But the Convention is only one facet of a much bigger problem: the juristocratic regime. And this is more than just a scholarly issue — it is a matter of class and power.

The birth of today’s juristocracy dates back to the late 19th century, when the gradual establishment of universal suffrage led to growing anxiety among ruling proprietarian elites, including most liberals including Mill, about the entry of the lower classes into government. The fear was that the extension of the franchise would disrupt social stability and constitutional principles — and, more precisely, that the working classes would use their new-found political rights to challenge the dominant economic order.

Most governments responded to this threat by effectively restraining popular participation through a mixture of parliamentary sovereignty, rule of law and formal or informal constitutional conventions. In England, this came to be known as the Westminster system, a regime premised on the idea that Parliament was the only body with the authority to make laws, thus implying the subordination of the judiciary to the legislative.

This form of political system became increasingly prevalent in Europe in the years after the First World War — and, in most cases, the power of the court to influence the legislative and political process was fairly limited. Indeed, as of 1942, only Norway had a constitutional court with the power to throw out laws adopted by the national legislature. Throughout the Forties and Fifties, however, several countries — including Germany, Italy, France and Austria — adopted constitutions that instituted courts with the power of judicial review: the power to examine, and eventually overturn, the decisions of the legislative and executive arms of government, if deemed in breach of the constitution.

This gave rise to the model of “constrained democracy” that was later emulated across most of Europe: one which possessed all the formal elements of democracy but where the ability of the masses to influence policy-making was subject to new sets of constraints. Though these constitutional courts were officially created as “guardians of the constitution”, they were in fact just as much guardians of the emerging US-led international order. Indeed, the early post-war years also saw the emergence of courts that were international or supranational in their own right, in Europe in particular, most notably the European Court of Justice and the European Court of Human Rights.

Westminster-style polities, such as the UK, were largely immune to this trend. But in the Seventies, the push towards judicialisation underwent a massive acceleration, including in the Anglosphere. Faced with growing pressure from an increasingly militant and politicised body politic, political elites resorted to various forms of depoliticisation — the removal of political decisions from the realm of popular-democratic contestation — in order to escape such pressures.

Judicialisation was one of the key tools — by either relying on the courts to challenge existing aspects of the social order that would have been hard to change through the normal channels of democracy, as Thatcher did, or by outright transferring power from majoritarian decision-making bodies, such as parliaments, to courts at the domestic and supranational level.

As Hirschl explained, even though this transfer of power might appear to run counter to the interests of political elites, in fact it served their interests very well. It allowed them to “scapegoat” the courts for policies they themselves wanted, safe in the knowledge that high judges tend to reflect the elite consensus on major cultural and political issues. “Deference to the judiciary, in other words, is derivative of political, not judicial, factors,” he wrote.

For the UK, this journey largely accelerated with its entry into the EU in 1972, which over time transformed EU law into something akin to a higher law. The second big push towards judicialisation came in the late Nineties and early 2000s under New Labour, with the creation of the Human Rights Act and then the Constitutional Reform Act of 2005, which paved the way to the creation of the Supreme Court in 2009.

Yet for Britain’s political elites, judicialisation still carried a risk — namely, that the courts would start producing judgments that no longer reflected the ideological preferences of those who handed authority over to the judiciary in the first place. Hence, the Conservative Party finds itself unable to enforce its Rwanda policy.

So, when leading Conservatives claim that the ECHR represents an infringement on democracy and parliamentary sovereignty, and that leaving the ECHR is necessary to complete the “Brexit project”, they are not wrong. The problem, rather, is that these arguments ring hollow.

After their victory in the EU referendum, many hoped that Britain’s democratic rejuvenation was just beginning; instead, the Conservatives have gone out of their way to avoid democratic scrutiny. They have a Prime Minister who rules without a democratic mandate, and a party machine which seems more interested in internal squabbles than fulfilling its electoral promises.

Should we be surprised, then, that a majority of people, according to a recent poll, don’t want to leave the ECHR? Perhaps they realise that, for withdrawal to make sense, it needs to be part of a radical project of re-democratisation. But that would require the existence of a political class that believes in democracy. Even if the Tories somehow manage to conjure up a way to bypass the Rwanda ruling, that uninspiring reality is unlikely to change.


Thomas Fazi is an UnHerd columnist and translator. His latest book is The Covid Consensus, co-authored with Toby Green.

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Alex Carnegie
Alex Carnegie
8 months ago

One could quibble with some of the detail but I think that Fazi’s basic point is correct: the influence of the judiciary has increased, is increasing and ought to be diminished.

My hunch is that the judges are overplaying their hand and that a reaction will set in. Amongst other things, I suspect British governments will become more like many other governments and start ignoring or side stepping inconvenient rulings. Judicial overreach will end up eroding support for the rule of law. A pity.

Walter Marvell
Walter Marvell
8 months ago
Reply to  Alex Carnegie

I agree. A very useful analysis of one key factor in the shocking erosion of democracy. Its a key tenet in the progressive New Order. But Thomas weakens at the end. The public have no clue about what the EHRC is so talk pf poll support is absurd. Tell them our laws can be blocked by an unseen unknown maybe Russian judge in unreported secret proceedings and they will not believe it. The Good Judge Sumption has better described this nightmare of judicial overreach. But now the Tories have been battered by that elite all necessary talk of reform is over. Nation states have no means to defend their borders from criminal illegals. Lets see how that plays out in the next decade across the West.

Ian Barton
Ian Barton
8 months ago
Reply to  Alex Carnegie

Change the law to reduce judicial interpretation. It’s not complicated.

Charles Stanhope
Charles Stanhope
8 months ago
Reply to  Ian Barton

Precisely that is what Parliament is there for, although most seem to forgotten that.
‘They’ should recall they have the power to repeal and should do so immediately with the 1986 Public Order Act, the legislation incidentally that was recently used to ‘crucify’ one Colonel Bob Stewart, DSO, MP.

Alex Carnegie
Alex Carnegie
8 months ago
Reply to  Ian Barton

Not that simple when judges claim the right to overthrow, rewrite or invent law on various justifications. In America the Supreme Court can overrule Congressional legislation if conflicts with the US Constitution (as idiosyncratically interpreted by it). In the U.K. equivalent manoeuvres can be justified by appeal to generously interpreted Human Rights or other wider principles. The refusal to accept Boris’ prorogation of Parliament was a recent controversial expansion of judicial authority into an area previously regarded as non-justiciable justified by, in effect, an appeal to Britain’s unwritten constitution as discovered, updated and now written down for the occasion by the Supreme Court. Thin ice.

There is a pragmatic argument that it is good to have a counterweight to an over mighty executive branch but, if one takes this view ,one needs to accept the corollary: the judiciary will be seen as politicised and brought into disrepute. Their moral authority – and that if the rule of law – will decline.

Jeff Carr
Jeff Carr
8 months ago
Reply to  Ian Barton

I think it probably is complicated. When the judiciary see their power coming under threat I am sure that they will find ways and means to thwart the will of Parliament.
The Blair government used its majority to bring into law acts that increased the role and power of the legal profession.
I think it is no coincidence that the Blairs are politically motivated lawyers and his first Cabinet had 7 lawyers.

William Shaw
William Shaw
8 months ago

The judiciary can only require compliance with domestic laws that parliament passes and foreign laws/treaties that parliament signs up to follow.
Parliament is sovereign.
The issue is a government that, in part, doesn’t want to change the current arrangement and, in part, is scared to do so.

Jonathan Nash
Jonathan Nash
8 months ago
Reply to  William Shaw

On Channel 4 News last night Cathy Newman expressed disbelief that the government could introduce legislation to nullify the decision of the Supreme Court: “that’s the kind of thing Belarus does”. She needs to brush up her understanding of the Constitution.

Simon Neale
Simon Neale
8 months ago
Reply to  Jonathan Nash

“So are you saying that the Supreme Court is a lobster?”

Charles Stanhope
Charles Stanhope
8 months ago
Reply to  Jonathan Nash

Newman is still suffering from long term PTSD after her bruising encounter with Jordan Peterson.

William Shaw
William Shaw
8 months ago

A little more than bruised.
I’d describe her as excoriated and exsanguinated.

R Wright
R Wright
8 months ago

“So you’re saying the Supreme Court is lobsters? “

Charles Stanhope
Charles Stanhope
8 months ago
Reply to  R Wright

I am unfamiliar with that expression, what does it mean precisely?

Peter B
Peter B
8 months ago

See Cathy Newman’s legendary attempted “gotcha interview” with Jordan Peterson where she seems blissfully unaware as she self-destructs. When you hear someone saying “so what you’re saying is”, it’s usually a reference to that – as she attempts to distort Peterson’s views. See “Jordan Peterson debate on the gender pay gap, campus protests and postmodernism” on You Tube (46 million views).
This interview encapsulates everything that’s wrong with modern media.
Her supporters later claimed that she was a “victim” and had been “bullied” – when that was precisely what she attempted to do to him.
Specifically, Newman misunderstood something Peterson had said about lobsters, but that’s a detail.

Charles Stanhope
Charles Stanhope
8 months ago
Reply to  Peter B

Thank you.
As I recall the American rebels used to call the British Army Redcoats “ lobsters “ during the insubordination of circa 1775.

james elliott
james elliott
8 months ago

It’s a phrase used by interviewers who disagree bitterly with their interviewees point of view, are secretly frightened the interviewee may in fact be right, and wish to wildly distort the interviewees stated point by restating it back to them in so garbled a form as to be ridiculous.

Not invented by Newman, but made famous by her when she interviewed Jordan Peterson.

Paraphrasing here:

JBP: “Well, some women may not want a career – some women find being a mother and home-maker to be more fulfilling than an office job. And it’s bloody hard work being a mother”

CN: “So, you’re saying all women should be made to stay at home, not be allowed out and be a sex toy of men?”

JBP: “No, not at all. Some women want a career, some don’t.”

CN: “So you’re saying women should be chained up at home, made to wear a scold’s bridle and live a life of slavery??”

That sort of thing.

It’s on youtube.

Charles Stanhope
Charles Stanhope
8 months ago
Reply to  james elliott

Thank you, a superb description!

Last edited 8 months ago by Charles Stanhope
Roddy Campbell
Roddy Campbell
8 months ago
Reply to  james elliott

It’s a textbook illustration of the Straw Man argument, repeated time after time.

Mike Michaels
Mike Michaels
8 months ago
Reply to  Jonathan Nash

I served Cathy Newman in the restaurant I am employed at about 18 months ago. When she said she wanted the chicken to my eternal regret I did not answer “So you’re saying you’d like the fish?” Apart from that her visit was uneventful. Nice hair.

james elliott
james elliott
8 months ago
Reply to  Mike Michaels

Tragic, wasted opportunity…

james elliott
james elliott
8 months ago
Reply to  Jonathan Nash

So you’re saying that Belarus is a suburb of Ukraine?

Jeff Carr
Jeff Carr
8 months ago
Reply to  Jonathan Nash

If a leading commentator does not understand the primacy of Parliament, one begins to understand why Democracy is under threat.

Harry Child
Harry Child
8 months ago

Another Blair’s disaster setting up an unelected supreme court who are gradually introducing ‘lawfare’. Add to his allowing unlimited immigration and starting with Bush a ridiculous war in Iraq which has allowed Iran to dominate the middle east by destroying the one country that was capable to stand up to the Mullahs and yet Labour/ Starmer still worship at his feet.

Pamela Booker
Pamela Booker
8 months ago
Reply to  Harry Child

And Cameron did absolutely nothing to reverse much of the damage Blair did to our previously fair and just country.

Peter B
Peter B
8 months ago

Good article. Rarely agree with Thomas Fazi, but when he puts his personal biases to one side he can be worth reading. Not good that judicial power has increased by stealth over the past few decades without greater public awareness and consent. Even if this is desirable (I’m not convinced that the resulting legal paralysis of government is a good thing), it should have been made clear in advance.
But he can’t resist working those biases in:
“the Conservatives have gone out of their way to avoid democratic scrutiny. They have a Prime Minister who rules without a democratic mandate,”
Well, they did submit themselves for early elections in both 2017 and 2019, so that doesn’t feel quite correct.

james elliott
james elliott
8 months ago
Reply to  Peter B

The first half of Fazi’s articles are sometimes good – in the second half he generally flicks the switch to, “and *that* is why we need to give Communism a try!” and it all falls miserably apart…

AC Harper
AC Harper
8 months ago

It’s worse than just the judiciary. Not only:

Over the past few decades, an unprecedented amount of power has been transferred from representative institutions to judiciaries…”

…but also to supranational bodies (EU, WHO etc), QUANGOs, charities, the Senior Civil Service and lobbyists on behalf of big businesses.
You could make an argument that the main use for the Houses of Parliament is to dress up the removal of power for the sake of distracting the electorate. Unless the MPs are willing to take back control I can’t see any real need to retain them… I wonder if they realise this?

Mike Downing
Mike Downing
8 months ago
Reply to  AC Harper

That’s why it just seems like theatre now and despite a few clueless wannabes, I don’t think most of them think they are ever likely to make any difference at all.

Alex Carnegie
Alex Carnegie
8 months ago
Reply to  AC Harper

Part of the problem is that we are trying to tame the twenty first century regulatory leviathan with eighteenth century political institutions that lack the bandwidth to do so. Twenty five odd ministers in Cabinet cannot hope to cope with the myriad of decisions needing to be taken so they are been taken instead by the long list of other bodies and individuals mentioned.

aaron david
aaron david
8 months ago
Reply to  Alex Carnegie

No, we are trying to tame political actors using only half, if that, of all the power, at least here in the States. If enough people got tired of the current malaise, and elected people who would be open to removing much of the rot, for that is what it really comes to, than this problem would go away rather quickly. But, half of the populous is now beholden to this behemoth, and will fight like the devil to keep it as large and unaccountable.

j watson
j watson
8 months ago

I think Author’s general contention that of the three spheres of governance – Legislature, Executive and Judiciary, the latter may have inadvertently acquired greater power than perhaps ever intended, a decent point.
One wonders though if it’s just we’ve recently had two particularly difficult issues – Brexit and Rwanda – and thus more spotlight on related rulings, and these aside it does it’s job quietly, efficiently and in great British tradition largely out of the glare?
However before it gets suggested this all some form of creeping Blob (bear in mind Supreme Ct judges almost all Oxbridge and privately schooled) worth remembering Acts of Parliament created the current legal structure. And thus what Parliament creates it can uncreate. As Author implies, I think, if the current structure seen as blocking the will of the people what has the current Govt been doing for 13 years, and esp last 4 years with a whooping majority? And err, who was AG before being appointed to Home Sec? Just searched and can’t find anything she said about root and branch change to UK legal system, just all about the external ECHR bogeyman

Martin Bollis
Martin Bollis
8 months ago
Reply to  j watson

We argued yesterday about the blob. Reading your comment I suspect our definition of it is so different we aren’t able to debate the concept sensibly.

For me, it is not a conspiracy of progressives hiding in the civil service, blocking every conservative move. What it is, is set out in this article, Mary’s article today and, to a degree, touched on in the article about Kier Starmer. A gradual alignment of a whole series of forces which have deliberately or coincidentally removed power from elected governments.

The swipes at the Tories aren’t necessary. You’re pushing an open door. Few on this ‘conservative’ site would disagree with you that the Tories have been a disgraceful shambles in the last few years. Your argument that they have no policy prescriptions to challenge either the democratice deficit (at least here in the U.K.) or the more immediate problems, are accurate.

The fear of most of us on this site is that labour will collude more actively in the removal of democratic power. “We have all the answers” is a much more central element of the left’s DNA and the party is much further in hock to the progressive’s more lunatic fringe. Three shadow cabinet members, including Starmer, refused publicly to confirm that only women have a cervix.

As for other policy prescriptions, beyond crippling the only part of the education sector that works, what are they?

Last edited 8 months ago by Martin Bollis
Peter B
Peter B
8 months ago
Reply to  Martin Bollis

Both good comments – and interesting to note how much we all agree on when we drop the political labels and occasional campaigning for our particular cause or tribe. And you are debating the concepts sensibly here !
I’m not sure this is really a “conservative site”. It may just be that it attracts more people with “conservative” views right now because they feel their views are neglected elsewhere.
Frankly, I’m not certain what “conservative” actually means these days. Nor “liberal”. Nor “progressive”. They are all constantly changing.
And it’s good that we have a diversity of opinion where people aren’t afraid to state unpopular views.

j watson
j watson
8 months ago
Reply to  Martin Bollis

Alot of ground to cover in responding to that MB, and probably can’t do justice here without losing all sense of useful brevity.
Maybe my key point would be the ‘Blob’ mantra seems to me the same form of reflex as that originally, and shockingly still, prompted by the Protocols of the Elders of Zion nonsense. I’m sure many may not mean quite as pernicious as that but it’s in the same vein and we all know where that Conspiracy ended up. So I think it beholds us to be better than such broad brush over simplifications. In the wrong hands this stuff spreads toxicity.
Now do I agree some sectors have a form of Group Think, even if sub-conscious? Yes to some degree v much so. Do I think where one lives/works/folks one mixes with more make a difference too? Yes of course.
But such Group think not unique to elements of the Left/Progressive/Met elite etc (whoever/whatever that might be). The neo-liberal view of economics been the predominant Group think for almost 4 decades now, to slightly varying degrees, and I think v overlooked when Blob Theories chucked around.
Maybe come back to you on some other points another time. Hope ok.

Martin Bollis
Martin Bollis
8 months ago
Reply to  j watson

It’s a fair point. As we’ve just proved, Blob means different things to different people and I don’t disagree that neo liberal economics has been accepted group think for a while. As a separate discussion, all our economic assumptions are going to need a lot of updating for our AI future.

Neo liberalism has also enabled tooth and claw capitalism to neutralise the old political left.

Larry Fink’s creation of ESG would be a prime example of Uber capitalism embracing progressive leftism to divert attention away from real issues like workers pay and conditions. It’s no surprise he and Starmer are in a networking group.

I think the blob is just a loose term to encompass the feeling of helplessness we all now have. The British state can’t stop boats, build railways or runways, arrest burglars, tax the uber rich or fix potholes. That it is so emasculated is a function of a whole host of things. Much of it is the huge amount of bureaucratic sand, from H&S overreach to DEI, we’ve poured into the state gearbox. Even more of it is down to how many different interest groups benefit from its impotence.

Whatever new world is emerging we, the little people, aren’t going to get much say in it, so it’s unlikely to suit us very well.

Always happy to discuss.

Simon Neale
Simon Neale
8 months ago

Consider the ECHR’s most important UK-related rulings — ranging from homosexual equality to journalistic freedom — and few would disagree that it has played an important role in strengthening the protection of citizens’ rights in Britain.

We can decide for ourselves, thanks, on the equality of our homosexuals and the freedom of our journalists.

John Tyler
John Tyler
8 months ago

The line “How the judges took back control” is a great example of how our democratic system has been warped. Theoretically, we have a parliament in control of making law on behalf of the electorate; judges are there to ensure nationwide consistency of compliance with law, NOT to be “in control”.
I’m not arguing with yesterday’s legal decision, but positively fume at the idea that judges should be regarded as having the right to control anything other their own courtrooms.

Caradog Wiliams
Caradog Wiliams
8 months ago

The crunch will come in the future case, – Very Overpaid Celebs vs The Government on the decision to put back diesel/petrol day until 2035. VOCs will throw everything at it – expect tearful appeals from Sir David A.

Rob Britton
Rob Britton
8 months ago

The reason why the political establishment loved the EU so much is because it was a useful scapegoat for everything that was going wrong. “Don’t blame us; blame the EU”. This government no longer has that luxury.

John Riordan
John Riordan
8 months ago
Reply to  Rob Britton

Exactly. National democracies in the EU increasingly are systems for electing people into privileged positions but without the corresponding accountability. No wonder they don’t want out. It’s only a wonder that any voter would still support such a system once they understand that this is how it really works. Since 2016 it became clear that a great many Remain voters didn’t understand this.

Jonathan Nash
Jonathan Nash
8 months ago

One feature of the Rwanda decision which makes it somewhat different from the usual judicial review is that the relevant legislation and case law makes it a decision for the Court itself whether Rwanda is a safe third country: the Court is not simply deciding whether the relevant minister acted rationally and in accordance with proper process. The Supreme Court decided Rwanda was not a safe third country, relying largely on evidence provided by the UNHCR which (as the Court noted) is institutionally opposed to third country relocation schemes.
Incidentally, the “spin” yesterday that the Supreme Court somehow ruled that in principle third country relocation was lawful, and this was a “win” for the government, was nonsense: it was not in issue that third country relocation was lawful.

Charles Stanhope
Charles Stanhope
8 months ago

“It is better that some innocent men remain in jail than that the integrity of the English judicial system be impugned.”

(*Lord ‘Tom’ Denning.1899-1999.)

Peter B
Peter B
8 months ago

You believe that Charles ? Or are questioning it ?
That’s exactly how we got into such a mess with the Guildford Four and Birmingham Six to name just two such cases. And the French with the Dreyfus affair.
It’s that sort of attitude that’s used to cover up things like the Post Office scandal you mentioned the other day.
The lawyers and judges cannot be above the law – no more than the Royal Family should be.

Jonathan Nash
Jonathan Nash
8 months ago
Reply to  Peter B

Denning’s observation was indeed made in an appeal by the Birmingham Six (or perhaps the Guildford Four) claiming that their confessions had been beaten out of them.

Charles Stanhope
Charles Stanhope
8 months ago
Reply to  Peter B

I’m using it to illustrate the pomposity and conceit of the Bar.
Off course Lord Denning was old at the time, but considered by most of the Bar to be a ‘national treasure’, as we now say. He (Denning) went even further by suggesting that both the Guildford Four and Birmingham Six should have been hanged. At the the time I forgave him, for who could not be moved by his famous judgement over the Linz Cricket Club?

However on further research I found that back in the 60’s whilst chairing the Public Enquiry into the Profumo Affair he had, to lapse in the vernacular, ‘bottled’ it. So appalling* had some of the evidence been against another Cabinet member that, prompted by the Prime Minister, he refused to publish it! What an astonishing and unforgivable dereliction of duty!

I could go on, for example the antics of Leonard (‘Leg over Lennie’ Hoffman in the Pinochet case did not cover the Judiciary in glory. Nor does the Stipendiary Magistrate (or whatever he is called these days), in the recent Stewart case appear to be unblemished. The nonsense over Baroness (Brenda) Hale and her spider broach did NOT enhance the majesty of the Law.

Something is terribly wrong with the Law! Do they think they are Gods? It is time ask ourselves that question Juvenal put two thousand years ago. “Who judges the Judges?”

(* The female stenographer was asked to leave the room.)

Last edited 8 months ago by Charles Stanhope
Pamela Booker
Pamela Booker
8 months ago

Maybe the Monarch should step in.

El Uro
El Uro
8 months ago

Let me repeat what Peter B said: “Good article. Rarely agree with Thomas Fazi, but when he puts his personal biases to one side he can be worth reading”
Thank you, Thomas!

Peter Kwasi-Modo
Peter Kwasi-Modo
8 months ago

Regardless of the rights and wrongs of the decision itself, Mr Fazi has flagged-up an issue with UK govenrance. It is as if the judiciary and the executive are playing a game: the executive’s lawyers have to guess what the judiciary will think of some legislation thay the lawyers are framing.
The judges Reed, Hodge, Lloyd-Jones, Briggs and Sales are all members of the House of Lords. If they had any show-stopping objections, they should have made this clear when they were supposed to have been scrutinising the legislation in the House of Lords.Instead, they all kept shtum, knowing that they could ambush the legislation after it was passed.
We all know that lawyers are absolutely wedded to this game-playing way of proceeding, but it is hugely inefficient because of the resulting delay so I don’t see why the rest of us have to put up with it.

John Riordan
John Riordan
8 months ago

Very interesting essay, but it does rather leave out a crucial factor, namely the historic role of common law jurisprudence.

To describe the gradual erosion of direct democratic power by an emerging juristocracy as if it is somehow sinister and unprecented, which the essay does, ignores the crucial point that the creation of new law used to be the near-exclusive preserve of the judiciary in the courts. It was the rise of Parliamentary democracy which increasingly added to the body of law through statute that was the first major transfer of law-making power between different government institutions, not the more recent emergence of supranational courts and activist judges.

Don’t get me wrong: I agree wholly with the fact that it is unacceptable for the courts, supranational or otherwise, to override a democratically valid mandate possessed by a government. That is clearly a defect of our present system that must be remedied. But it is also true that the technical experts in the application of law are judges, not politicians, and it has always been true that common law jurisprudence is itself one of the essental checks and balances within Britain’s democratic institutional landscape. For decades in modern times, common law jurisprudence was the means by which judges created new law and it never led to a constitutional crisis of the sort that looks increasingly likely now.

So it’s not quite as simple as the above essay might lead us to believe, is it?

Last edited 8 months ago by John Riordan
Alex Carnegie
Alex Carnegie
8 months ago
Reply to  John Riordan

True. It is more complicated as you indicate. But I think few would deny that judiciary have expanded their role in recent decades through judicial review, human rights, etc. – and reveled in doing so. This arrogant expansion is IMO likely to provoke a backlash which may make it difficult to restore the balance that used to exist i.e. we may end up with the baby as well as the bath water being discarded.

Linda M Brown
Linda M Brown
8 months ago

Unelected Judge should uphold laws made by Parliament, not interpret them as they see fit.

John Riordan
John Riordan
8 months ago
Reply to  Linda M Brown

Last edited 8 months ago by John Riordan
David McKee
David McKee
8 months ago

Let’s not get carried away here. In this instance, the Supreme Court is not usurping the power of Parliament. It is not making up the law as it goes along (unlike one or two Supreme Court decisions I can think of). It is doing what it is supposed to do – to interpret the law for specific cases.
The problem lies with Parliament, not the Supreme Court. If Parliament chooses to sign up to all sorts of supranational institutions, then we have to follow the rules. If the rules become too onerous for us, we leave the club.

Ian Barton
Ian Barton
8 months ago
Reply to  David McKee

It seems reasonable to claim the judicial system is usurping the power of Parliament when so many “interpretations” lead away from the intent of the elected.
Similarly, the House of Lords seems not to be a “revising” chamber these days – more an “opposing” chamber.

Last edited 8 months ago by Ian Barton
Tharmananthar Shankaradhas
Tharmananthar Shankaradhas
8 months ago

Our MPs are culpable as it is they who have create laws so that governments can be held accountable through courts rather than via the ballot box. Examples include Net Zero etc. This has created rich seam for lawyers to mine and judges to exercise their judgment outside democratic accountability.

Susan Grabston
Susan Grabston
8 months ago

Have been astonished.Conservatives didn’t abolish the supreme court. You can’t wield power unless you control the levers of powers. Our paralysis is a function of lawfare (litigation by all and sundry), non-elected nodies (ngos, quangos, etc) and some bad law. But then i’m not convinced politicians want the accountability that goes with power.

Pamela Booker
Pamela Booker
8 months ago

So, if we are all under the power of the judiciary, it’s high ti.e we had the power to elect our judges

Pip G
Pip G
8 months ago

A Qualified No. We must unravel English (or Scottish) law, EU law, and interpretation of each. The mainland of Europe has ‘civil law’ systems which give greater freedom to the courts on interpretation and application. England has a ‘common law’ system with strict adherence to precedent and how statutes are interpreted. The courts do not “make the law”. The Supreme Court used these principles in the ‘Prorogation’ case (where a minority of judges decided for HMG) and the ‘Rwanda’ decision. Greater problems arise in interpretation of (the sometimes imprecisely worded) EU law, but the courts do their utmost to give proper interpretation. A greater undemocratic method is the increasing legislation by Statutory Instrument: laws issued by HMG with no scrutiny by Parliament. The author suggests that “Questions … ought to be resolved through public deliberation in the political sphere”. How? By a new unelected body? By referendum? That went well with the Leave EU referendum. By votes on Twitter? It is easy for the ignorant or unthinking to blame our courts but they continue to be a check on the excesses of governments, executives, and individual politicians.

Ethniciodo Rodenydo
Ethniciodo Rodenydo
8 months ago

More trite nonsense from Fazi.

William Shaw
William Shaw
8 months ago

He’s either totally clueless or engaging in misinformation.

Last edited 8 months ago by William Shaw
Ian Barton
Ian Barton
8 months ago

Trite possibly – but please explain which points you believe to be “nonsense” and why.