Tag Archives: Judicial Review

Statism and Judicial Activism


Statism and Judicial Activism

By Duncan Whitmore

In a previous essay concerning the Supreme Court’s judgment against Boris Johnson’s decision to prorogue Parliament1, we noted that several commentators had criticised the judgment for its “political” nature, calling for greater scrutiny of the judiciary and the judicial appointments process.

It will be argued here that castigating the case as the moment when the judges crossed over from law to politics is wide of the mark, and that a politicised judiciary is a necessary and unavoidable outcome of the growth of democratic statism. As we shall see, this is a trend which Britain has endured for around a hundred years (with an acute acceleration in the post-war era). Consequently, the only way to ensure a relatively impartial, apolitical judiciary is to roll back the size and scope of the state.

The Judiciary in Political Theory

The state’s power of adjudication receives relatively little attention in everyday political discourse. Nearly all of the headlines are attracted by what the executive and the legislative spheres of the state – Presidents, Prime Ministers, parliaments, and so on – are up to rather than the wigged magistrates presiding over dark, dusty courtrooms.

One reason for this is that the non-judicial state institutions have a greater scope to act unilaterally. The government can announce initiatives and Parliament can enact laws without the need for any outside stimulus. The courts, on the other hand, are in the position of having to wait for a case to come before them, i.e. for people to find themselves in an active conflict with other people. The direct outcome of such a case may impact upon only a handful of participants and, even if the principles under scrutiny are far reaching, the judges may rule only on a single specific point at any one time. Moreover, the prevalence of democracy focuses discussion of your political rights on your ability to vote in elections which, in most cases, is not the method of selection for the judiciary. Participation as a jury member is, to be sure, viewed as a civic duty also, but this may occur only a handful times during a person’s life, and direct involvement in a court case as one of the litigants is even less likely. Thus, the perception that the judiciary has a relatively diminished ability to touch everyone’s lives has lent them a degree of remoteness compared to other organs of the state. Read more

“A Judicial Jamboree” – Boris and the Supreme Court


“A Judicial Jamboree” – Boris and the Supreme Court

By Duncan Whitmore

Last week’s judgment of the Supreme Court (“Miller/Cherry1) that Boris Johnson’s prorogation of Parliament was unlawful has been greeted as a “triumph” of democracy on the Remain side but, conversely, as an unwarranted judicial wading into politics on the Leave side – together with calls for the scrutiny of judicial appointments akin to what is seen with the US Supreme Court.

It will be argued here that, while undoubtedly significant, the court’s judgment to review the government’s decision for prorogation (and its disagreement with that decision) was not the most extraordinary aspect of the case. As we shall go on see in detail, the case is really an outcome of a continuing, decades-long attempt to squeeze historic, pre-democratic elements of Britain’s constitution into a democratic straitjacket.

What is astounding, on the other hand, is that the robustness and confidence of the decision represents a continuation of the same theme we identified in a previous essay on Brexit and the British Constitution – that the pro-Remain establishment, instead of simply cutting its losses and swallowing Brexit, is blind to the fact that its efforts to thwart the referendum result is jeopardising everything that legitimises (in the eye of the public) the sustenance of the British state. As Sean Gabb has said in his own post on the matter, “all that surprises me is that the Remainers are so committed to stopping Brexit that there is no part of the Constitution they are not prepared to feed into their political shredding machine.” Surely they must have realised the Supreme Court’s decision, delivered without a single dissenting voice among eleven justices in spite of convincing counterarguments, would brazenly and wantonly take a sledge hammer to yet another veneer of legitimacy over the state system that keeps them in power – the notion of an independent and apolitical judiciary? Read more