The PM and the Leader of the Opposition have been rebuked by Baroness Carr, the Lady Chief Justice, for an exchange that took place at Prime Minister’s Questions last week. Kemi Badenoch raised the absurdity of a judicial decision to allow the migration of a family of six from Gaza under the scheme exclusively designed for Ukrainians (this is just yet another in a long history of ridiculous immigration judgements) . The PM agreed, saying that the judgement was clearly ‘wrong’.
The Chief Justice has written to complain that it is the role of government “visibly to protect the independence of the judiciary” and that where it disagrees with judges, then the proper course it to appeal to a higher court.
Well, strictly speaking she is correct, but she protests too much. The independence of the judiciary was not being questioned, politicians were merely remarking on the stupidity of their decisions not their independence.
Cleary the Lady Carr has ideas above her station if she thinks that the decisions of her judicial colleagues should be above the criticism of elected representatives, particularly when they so often offend against common sense.
I have long believed that Parliament should bring the judiciary to heel (see my blog of 25/09/19: Yes, it is a coup and my demand that Boris make ‘bygones’ his…top priority). Alas, that important agenda remains unaddressed.
Every now and again, someone will write to me demanding a written constitution for the UK. I never agree. We have far too many priorities for legislative time, to be able to set aside so much of it for the enormous task of finding an elusive consensus to establish what the constitution ought to be, what the powers -and the limits on powers- should be. It would require an enormous consultative undertaking and plebiscite. Properly done, it would take years.
Instead, we have no special category for constitutional laws, they can be amended or repealed just like any other law, so that no Parliament can be bound by its predecessor.
But now, I’ve come to the view (however disagreeable I find it), that we do already have a written constitution, and that it is the Human Rights Act 1998: The Act requires that every government bill introduced to Parliament must be certified by a minister as being compliant with the Human Rights Act.
When courts subsequently rule that legislation is not compliant (irrespective of what ministers thought). Then Parliament meekly rushes to amend the offending statute.
It remains true in theory, that Parliament could simply ignore the court’s judgement, but in reality we inevitably surrender to rule by judges. Little wonder then that Lady Car has such an elevated conception of her status.
Parliament is currently, once again, meekly in the process of surrendering to the courts in the most egregious of cases. We are rushing through legislation to amend the Northern Ireland Legacy Act to enable Gerry Adams to resume his legal action seeking compensation for a conviction for escape from lawful custody during the conflict waged by the IRA in Northern Ireland, the Court having ruled that preventing the claim, as the Act set out to, is contrary to human rights.
You couldn’t make it up.