By JR on Tuesday, November 15, 2011
Two cases from the past week highlight a worrying extension of judicial power
The courts were flexing their political muscles again last week – as they seem to every week. First, a High Court judge ruled that Sefton Council could not legally freeze the fees it pays private companies to look after old people needing care. Then, on Friday, the same court ruled that the Isle of Wight could not cut its social care budget for the disabled.
I happen to agree that it is bad that the amount devoted to paying for the elderly, or the disabled, should fall behind demand – but what business is it of the High Court to enforce its view? No doubt those who will benefit, and their relatives, will be delighted. But since the money will have to be saved somewhere, other people will end up having their services cut, and will be very unhappy. What will the High Court do then?
It’s the job of local authorities to balance competing needs and to come to a conclusion as to which should be sacrificed – just as Parliament must perform that task on a national scale. The matter of how resources gathered from taxpayers are distributed is, and ought to be, a decision for the elected and accountable representatives of the people. If we don’t like what those representatives do, we can change them. That is what democracy means.
Judges are not accountable to anyone for their actions. Nor should they be: their independence depends on their immunity from the pressures that sway politicians. But as I have argued before, this requires that judges should not take it upon themselves to correct what they think are bad decisions by elected officials – because when they do, they subvert the democratic process.
In an important and revealing lecture last week, Jonathan Sumption QC explained why judges keep trespassing into areas which ought to be, in all but the most exceptional circumstances, the exclusive preserve of elected politicians. Essentially, it is because they do not recognise that this is what they are doing. Judges, Sumption suggests, do not set out to substitute their judgment for that of politicians. But because they do not think seriously about the importance of respecting the boundaries between the judiciary and the other branches of government, they end up discovering bad legal reasons for quashing policies they don’t like.
The passing of the Human Rights Act has made the situation worse – but it didn’t create the problem. Indeed, Sumption gives some powerful examples of judges substituting their own views for those of Parliament. In a very telling quote, Lord Steyn, the former Law Lord, justifies judicial activism on the grounds of the deficiencies inherent in the British electoral system.
Sumption comments that he “cannot be the only person who feels uncomfortable about the implicit suggestion that it is the function of the judiciary to correct the outcome of general elections”. He certainly is not: many judges would probably feel uncomfortable about it too, if they thought about it. The trouble, as Sumption suggests, is that they don’t.
Sumption is a famously formidable barrister, currently acting for Roman Abramovich in his battle with Boris Berezovsky. He’s also been appointed to the Supreme Court, a post he will take up as soon as that case concludes. Will he be able to persuade his fellow justices to share his sensible view of the limits of judicial power?
He may already have one ally in Lord Brown, who in a dissent that I reported on early last month, expressed alarm at the willingness of his colleagues to take what were essentially political decisions. Sumption may, however, find it difficult to persuade the other justices, none of whom is exactly celebrated for their ability to recognise that they are wrong about anything of significance.
Still, if anyone can persuade the majority of the 12-man court to think more carefully about trespassing into the political realm, it is Sumption. I dearly hope he succeeds. Because if he fails, the politicisation of the judiciary will only proceed further.