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Beware of Murmuring Judges and prepare for Whigs on the Green.

The current political administration in Britain attacks the Civil Service (by cull) and the Judiciary (by murmuring) while tightening the grip of the Executive, particularly through unelected advisers and ‘specialists’.

By Christopher Stanley

For readers of Village the names of Gina Miller and Shamina Begum may not immediately be recognised. They are two women with British citizenship. That is probably all they have in common. But both have made headlines in the British press by way of their (ab)use of the courts. They have atttracted notoriety within parts of the British media and have now provoked the hositility of the  Conservative government or rather its Executive (right) wing in the Cabinet Office. Their actions may have dangerous constitutional consequences, not by any fault of their own but by the reaction of unelected officialdom (SPADS), including media commentators (The Daily Telegraph and The Spectator) and right-wing think-tank ‘influencers’ (intellectuals) such as Policy Exchange. 

My last post for Village examined an apparent  constitutional ‘crisis’ in Britain. This ‘crisis’ was presented from the perspective of “The Narrow Ground” of Northern Ireland. However, it was also written as a warning to other advanced democracies tempted to tamper with the constitutional machinery of their systems of governance and also to identify emerging trends in the governance of complex societies under threat from ‘emergency’ situations including terrorism, fiscal downturn and pandemics. 

For Northern Ireland, any tinkering with the British constitutional settlement (actually English constitutional convention within a devolved jurisdictional structure) must be considered in terms of The Belfast/Good Friday Agreement 1998 (GFA98), the expectations of all people in Northern Ireland and the current political arrangements including the maintenance of the security of what is a politically and economically fragile society. 

A semblance of stability at Stormont has only recently been restored.  Northern Ireland has its own ‘particular circumstances’ and within the fabric of its society is a commitment to human rights and the Rule of Law, of which the judiciary are the principal guardians. 

I have been critical of the most recent Whitehall proposals for Northern Ireland which, if implemented, would, I suggested, undermine the commitment to human rights and the Rule of Law for Northern Ireland. These proposals could lead to valid legal challenge (or disruptive ‘political litigation’?), dissent and fracture (see: The Pall is Lifting written for readers of Village). As ever Whitehall-thinking and Westminster-ideology ignore the subtleties required to secure the peace process in Northern Ireland.

[i]

Where do Gina Miller and Shamina Begum figure in this view from The Narrow Ground? In short, their cases are being used as an excuse by the Conservative government to reign in “excessive” judicial power. This is part of a process of radical response to the apparent constitutional “crisis” which, if implemented, would further increase dominance by the Executive over the Legislature (Parliament) and the Judiciary. 

This is happening on the false pretext of restoring Parliamentary Sovereignty which is the none too subtle sleight of hand within an Elective Dictatorship by which the roles of Parliament and the Judiciary within the dynamic of the Separation of Powers are dangerously diminished, undermining accountability and transparency by limiting scrutiny of Executive discretionary powers. It severs the trust – the fiduciary relationship – required between those who govern and those who are governed and blurs government for the public good, needed now more than ever in an era of uncertainty and emergency. 

[ii]

Why should Westminster Politicians and Whitehall Ministers, Civil Service Mandarins and Cummings-Type SPADS be careful when Murmuring Judges? 

Murmuring judges is an offence in Scottish law (called Scandalising Judges in English law) and is the act of causing offence to judges, accusing them of corruption – or indulging in judicial overreach (See: BBC News 10 12 2012).

Judicial overreach or the exercise excessive judicial power is the present scourge of some in the current British government, of their advisers and their friends in right-wing neo-liberal think-tanks such as Policy Exchange whose express role is Protecting the Constitution:

“The rise of judicial power in the UK in recent years is a striking change in our constitutional arrangements – in how we are governed – a change that threatens good government, parliamentary democracy, and the rule of law. The expansion of judicial power is a function both of Parliament’s decision to confer new powers on courts, most notably by enacting the Human Rights Act 1998, and of the changing ways in which many judges, lawyers and scholars now understand the idea of judicial power. Parliament is responsible for maintaining the balance of the constitution and should restate limits on judicial power, restoring the political constitution and the common law tradition. 

The Government has been elected on a manifesto commitment “to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts”, to “update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government” and to “ensure that judicial review … is not abused to conduct politics by another means or to create needless delays” (page 7).

Gina Miller’s ‘offence’ was (on two occasions) to challenge the British government regarding exiting from the EU. On both occasions the UK Supreme Court (UKSC) upheld her application. 

In R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 the court ruled that fresh legislation had to be enacted before the Government could trigger Article 50 and begin the process of the UK leaving the EU. 

In Miller (No 2) [2019] UKSC 41 following the prorogation of Parliament — a step formally brought about by the Queen on the advice of the Prime Minister — the court was ask to determine whether that advice, and the resulting prorogation, was unlawful. 

The court held that the issues raised by the case were properly justiciable and concluded that the advice and the prorogation were unlawful. 

The UKSC held that the prorogation prerogative does not extend to a situation where a fundamental constitutional principle would be impinged upon without a reasonable justification. 

Shamina Begum’s ‘offence’ was more straightforward. She is a British-born woman who left the UK aged 15 in 2015, to join the Islamic State of Iraq and the Levant (ISIL) in Syria

Her intention to return to the UK in 2019 resulted in a public debate about the handling of returning jihadists. In February 2019, the British government issued an order revoking her British citizenship and later clarified that she would never be allowed to return. In July 2020, however, the Court of Appeal ruled that Begum should be permitted to return to the UK, so that she could fairly contest this decision by instructing lawyers properly (Shamima Begum v SSHD  [2020] EWCA Civ 918). That judgment will be appealed by the British government to the UKSC. 

Policy Exchange was critical of the UKSC judgments in the two Gina Miller challenges going so far as to state in relation Miller (No 1) ”The whole judgment is an affront to the political constitution; it promises to do considerable further damage to the Rule of Law” (page 13). 

The Home Office said regarding the Begum judgment “This is a very disappointing decision by the Court. We will now apply for permission to appeal this judgment, and to stay its effects pending any onward appeal. The Government’s top priority remains maintaining our national security and keeping the public safe”. (Home Office) (last accessed 21 07 2020)).

[iii]

I have noted previously (constitutional ‘crisis’) that the Conservative Party Manifesto published in advance of the UK General Election in December 2019 promised that:

“After Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people”…

“We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital National Security and effective government”… 

“We will ensure that judicial review is available to protect the rights of the individuals against an overbearing  state while ensuring that it is not abused to conduct politics by any other means or to create needless delays” (Conservative Manifesto 2019 page 48).

On 18 July 2020 The Daily Telegraph reported that: “Judges could be barred from making political rulings under a Government review, as the Court of Appeal was accused of ‘taking over’ after deciding that Islamic State bridge Shamina Begum could return to the UK”. 

A commission of five ‘independent’ legal expwers “could put in place new rules to prevent judicial reviews being used to make political decisions”. The report noted the Government’s frustation with the Miller (2) judgment and the fact that “Dominic Cummings, the prime minister’s chief adviser, is said to be particularly exercised about the role of judges and courts.” (See also: Law Society Gazette 06 08 2020 (last accessed 06 08 2020))

Influential right-wing political commentator Charles Moore (official biographer of Margaret Thatcher and peer-elect) wrote in The Daily Telegraph on 25 July 2020 in the following terms, expressing his ire and rancour at the “meddlesome” judiciary in regard to Brexit and specifically the Miller litigation:

“What remains unresolved is the future relationship of our judiciary, our officialdom, and their concept of human rights law with a country that is becoming truly independent once again”.

This sentence requires a little unpacking. What does Charles Moore mean by ‘officialdom’? Does he mean the civil service or Ministers of State? Whose concept of human rights law? The judges and officialdom? What is the relationship between human rights law and post-Brexit Britain? Is this a further sleight of hand  by those on the right to elide discreet ideas and to tinker with the constitutional balance by way of a further attack on human rights law, specifically The Human Rights Act 1998 (HRA98) (an Act of Sovereign Parliament, Charles).

“Ever since the Blair era, human rights law has become  a pervasive meme in public policy and administration. Although upholding many valuable principles, international human rights law also disables the elected government from responding to the wishes of actual voters”.

A pervasive meme? “A unit of cultural information, as a concept, belief, or practice, that spreads from person to person in a way analogous to the transmission of genes” (Collins Dictionary)?

Here I would suggest that Charles Moore is dripping into the subconscious of his reader a morbid analogy between human rights and Covid-19, both being ‘crises’ for some within the current English polity. Charles Moore is wrong to clumsily combine human rights law in the UK (which is the incorporation of the European Convention on Human Rights (ECHR) by way of the HRA98) with international human rights law (and humanitarian/customary law). The latter extends to all UN Conventions and similar treaty body codes to which the UK is only partially obligated or not obligated at all.

“Responding to the wishes of actual voters” would indicate delivering the Democratic Mandate, in short the promises stated in the Manifesto. 

First, I question how many “actual voters” read the parties’ manifestos prior to exercising their democratic right via the ballot box. 

Second, I question the strength of the democratic mandate delivered by “actual voters” when turnout for the most recent General Election in the UK in 2019 was less than 70% (UK General Election Turnout).

Third, when a General Election delivers an Elective Dictatorship it becomes the Executive who assume dominance at the expense of the Sovereign Parliament which is why the judiciary must assume the role of scrutiny, securing the Rule of Law and maintaining accountability of politicians, civil servants and their advisers by way of securing trust between governed and government. 

At this juncture Charles Moore drops Northern Ireland – The Narrow Ground – into the mix (with its own particular electoral demographic). For example, he cites the “failure” of the law to protect veterans of British security forces who served during the Conflict. Those veterans are protected by rights to a fair trial. The decisions to pursue prosecutions against them are taken by independent law officers. He continues that in relation to international law (not international human rights law, note) Brexit was a repudiation of the GFA98. 

I suggest Charles Moore is spreading his argument a little thinly and the spectre of the wayward judiciary is fading. The GFA98 endorses a commitment to human rights and as the document is a cross-border and internationally recognised peace agreement  and any interference from London would alarm Belfast, Dublin and Washington and would threaten possible further violent dissident activity. 

Charles Moore calls in support from Policy Exchange and its Judicial Power Project (JPP) which I have written about previously for Village (constitutional ‘crisis’). He endorses the ‘influential intellectual pushback’ Policy Exchange purports to offer the current political administration. 

“The focus of this project is on the proper scope of the judicial power within the constitution. Judicial overreach increasingly threatens the rule of law and effective, democratic government.  The project aims to address this problem – restoring balance to the Westminster constitution – by articulating the good sense of separating judicial and political authority.  In other words, the project aims to understand and correct the undue rise in judicial power by restating, for modern times and in relation to modern problems, the nature and limits of the judicial power within our tradition and the related scope of sound legislative and executive authority” (JPP).

“The project’s concern is with how and by whom public power is exercised.  Doubts about the wisdom of an expansive, adventurous understanding of judicial power have been, are and should be shared by people and groups who otherwise have very different political commitments. The project’s central idea is that the decisions of Parliament ought not to be called into question by the courts and that the executive ought to be free from undue judicial interference, which fails to respect political judgment and discretion.” (JPP)

Charles Moore identifies the scourge of “political litigation” (see The Spectator 15 09 2019 (last accessed 27 07 2020)) by way of juidical review which considers “Has increasingly become a means to question the merits of the decisions governments have made” spurred on by the ‘misuse’ of the HRA98 and those pesky wayward – usurping – judges. He welcomes the government’s decision to conduct a reappraisal of judicial review and a review of the UK’s continued commitment to the ECHR and its court in Strasbourg. 

Regarding “wayward” judges, Charles Moore was always hostile to the previous President of the UKSC, Baroness Hale. He has more time for the current President Lord Reed (“more careful”). Perhaps Moore should note the following from Lord Reed:

“At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other”. (R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51 at paragraph 68)

Charles Moore concludes:

“In a free country, the law should be the law of the land, over which Parliament is sovereign, not the rule of amorphous concepts controlled by lawyers – especially not lawyers outside our jurisdicition. Until that is achieved, our country’s freedom is precarious”.

Again, this paragraph requires deconstruction. I do not contest that Parliamentary Sovereignty is a foundational principle of the British Constitutional Settlement. However, there is also the importance of the Separation of Powers between Legislature (Parliament), the Executive (Government) and the Judiciary. 

Charles Moore now has the right to sit within the Legislature having been ‘elevated’ (and unelected) to the House of Lords (see: FT Comment 31 07 2020).

His view of the role of the judiciary within the constitutional arrangements is being pushed by the likes of Dominic Cummings (I have previously commented on Dominic Cummings’ opinions on the management of power for Village (Contempt in the Rose Garden) and is bolstered by a further recent Policy Exchange paper Reforming the Supreme Court.

As I noted abovem now the government proposes to review the role of judges “in politics” by a panel of ‘experts’ to “examine judicial review and the need to strike a balance between the rights of citizens to challenge government through the courts and the elected government’s right to govern” (Daily Telegraph 31 07 2020 (last accessed 03 08 2020)). 

[iv]

I intend to approach these reactions to an apparently overreaching judiciary in two ways. 

First, what is motivating this reaction within the British government and within certain associated institutions where consitutional thinking is happening? 

Second, what are the dangers to the constitutional settlement with this ‘tinkering’ by a dominant Executive unfettered by Parliamentary scrutiny or accountability?

[v]

As to the first. The motivation to rein in the apparent overreaching tendencies within the Judiciary comes from the emerging view within elements of the current Government and its influencers (advisors, think-tanks, global organisations, assorted apparatchiks  within  the Conservative Party Research Department) that unelected judges are making political judgments which interfere and undermine the right of the elected Government to govern. They are indulging “political litigation” by up-start liberal do-gooders. 

I maintain a naïve and sentimental affection for the political philosopher John Locke who wrote in 1690 (two years after the Glorious Revolution which deposed absolutist James II): 

“159. WHERE the legislative and executive power are in distinct hands (as they are in all moderated monanrhies, and well-framed governments) that the good of society requries, that several things should be left to the discretion of him that has the executive power” (John Locke, Second Treaties of Government (Cambridge In: Hackett (1980) page 83). 

John Locke carefully limited the executive’s power to its use for the good of society and makes clear that the monarch’s actions have to be reinforced by the legislature. His discussion of prerogatives expands his concepts of balance of power and limited government: “This power to according to discretion, for the public good, without the prescription of the law, and sometimes even against it, iswhich is called the pereogative” (ibid page 84).

John Locke’s use of the phrase “for the good of society” and “moderated monarchies and well-framed governments” indicates the demand for necessary limits to Executive powers.

Whilst Britain remains a Constitutional Monarchy with a Sovereign Parliament the present constitutional arrangements have, by the elective system in place, delivered an Elective Dictatorship. This means the opportunity to tighten the grip of Executive power and dominance at the expense of a neutered Parliament. 

One of the roles of the Judiciary therefore becomes to reflect the role of Parliament in securing accountability and transparency by way of scrutiny of those in Executive authority exercising discretionary power for both their law-making role and their decision-making. As David Jenkins noted in 2011 in the context of Executive powers being exercised in the post-9/11 emergency era:

“John Locke’s constitution divides political power between the Executive and the Legislature, with the latter checking and balancing the former. Both the Executive and the Legislature have a fiduciary trust to act for the public good. Locke closely links the public good and the constitution such that any breach of the constitution is per se a breach of the public good. Therefore, unreviewable decision making by the Executive always violates its trust because it is a breach of the constitution.

The Lockean constitution, broadly conceived, is a sophisticated system for the separation of powers. Locke divided political power between an executive and legislature, each having independent fiduciary trusts to act for the public good. Because the public good is politically contestable, Locke closely linked it to a structural system for its rational realisation. The substantive goals or requirements of the resulting trust, which resides in those wielding political power, are likewise circumstantially dependent and open for debate. However, that trust always requires fidelity to constitutional checks and balances that allow institutional struggles over the meaning of the public good and restrain power, especially unitary executive power. In Locke’s dualistic model, which is the forerunner to modern separation of powers theories, the legislature is the sole or primary institutional check on executive power. An attempt by the executive to undermine the legislature’s independence or oversight, or otherwise to slip the restraints it puts upon him, is tantamount to an attempt to wield absolute power. Absolute power per se violates the public good and thereby the executive’s trust, because it runs too high of a risk of miscalculation or arbitrariness” (The Lockean Constitution.

[vi]

Law-making in the UK is by Statute. However, the Parliamentary process of introducing and scrutinising legislation as it proceeds relies upon both an agreed timescale, due process and balanced debate. In addition to Acts of Parliament there is a wide range of legislative instruments which are not always subject to the required level of necessary scrutiny. These maybe secondary legislation,  statutory instruments, guidelines and guidance and so forth. 

In an Elective Dictatorship with a powerful majority in Parliament, the Democratic Mandate, the delivery of which is the project of the Executive, can be secured without the sufficient rigours of Parliamentary scrutiny. 

Scrutiny is an ambiguous concept contingent upon a Legislature’s constitutional and procedural rules but also contingent on the stances of particular actors—including government, opposition, parliamentary committees and outside observers. As the Institute for Government noted: 

“The government’s proposed timetable for Commons scrutiny of the Withdrawal Agreement Bill (WAB) would be deeply inadequate for any major piece of government legislation. For a constitutional bill which makes probably the most significant changes to the UK’s position in the world that the Commons has been asked to consider for decades, it is extraordinary. The government must know this, but it is asking MPs to agree the timetable or be seen to be thwarting Brexit. 

The government’s proposed timetable sees MPs asked to decide on the principle of whether to legislate (by voting on second reading) today, little more than 12 hours after seeing the bill for the first time. Remember, this is a bill dealing with highly contentious issues including the divorce payment, the transition, Northern Ireland and arrangements for negotiations on the future relationship between the UK and the EU.

Poor scrutiny leads to poor legislation. Without adequate time to reflect and consider what the government is proposing, flaws and unintended consequences may not be spotted. This scrutiny is about much more than MPs having time to debate the kind of Brexit they want (Institute for Government 22 10 2019).

[vii]

“Poor scrutiny leads to poor legislation” which is where the role of the judges lies.  

The Executive (Ministers, Civil Servants, Special Advisers) in an Elective Dictatorship is motivated by the delivery of the Democratic Mandate. The Democratic Mandate – the will of the Executive – can be delivered most effectively (in terms of the Executive) where there is an absence of scrutiny and accountability and restricted access to lawful challenge before the judiciary. 

The current political administration in Britain attacks both the Civil Service (the cull by ‘hard rain’) and the Judiciary (by murmuring). It further tightens the grip on Executive Dominance, particularly by unelected advisors and ‘specialists’. (See: Civil Service World 25 06 2020).

Therefore, for the current Executive, alleged judicial interference in the delivery of policy – the Democratic Mandate – must be restricted. The smokescreen which is being created by the Executive and those influencers – Policy Exchange, for example, and elements of the media, Charles Moore for example – is that the judiciary is over-reaching itself and stepping into the world of politics and policy in order to impress its own authority within the post-BREXIT constitutional settlement.  

The judiciary is enabled in this direction because of supposed ‘political litigation’. Political litigation is perceived by the Executive to be legal challenges which seeks to attack the political will of government or undermine Parliamentary Sovereignty.

‘Political litigation’ is pursued through the use of judicial review by challenges to decision-making processes by government agencies. Judicial review ensures that the government acts within the law as enacted by Parliament. Often at the core of such a challenge is reliance upon the HRA98 and the jurisprudence of the ECHR as developed (being a ‘living instrument’) by the European Court of Human Rights in (ECtHR) through is jurisprudence. 

What is “political” – this begs the question of whether all ‘political’ decisions – whether by central or local (or devolved?) public bodies should be immune from legal challenge?

Gina Miller challenged the Executive decision to prorogue Parliament and not to offer it a vote on Article 50. Shamina Begum challenged her right to contest the removal of her British citizenship in a British court. Colonel Mousa challenged the failure of the Ministry of Defence to effectively investigate the murder of his son Baha Mousa in Basra whilst in the custody of the British Army. Geraldine Finucane continues to challenge the failure of the British Government to effectively investigate the murder of her husband, Belfast solicitor Patrick Finucane, killed in 1989 by a state agent. Keith Gray from Down threatened a judicial review against healthcare authorities in Northern Ireland for failing to conduct independent inspection of care homes, including the one in which his mother is a resident, during the Covid-19 pandemic. 

As Oliver Cater noted in an ‘Open Justice’ opinion:

“The Prime Minister shutting down Parliament for five weeks during a time of national crisis. The government failing to meet its own air pollution targets. Falling numbers of rape prosecutions by the Crown Prosecution Service. The removal of safeguards for children in care during the current pandemic.

What these issues have in common is that they have all been the subject of recent legal challenges brought by judicial review against the government, local authorities and other public bodies. Whether the cause is the environment, social welfare, criminal justice, disability rights, civil liberties, healthcare or even parliamentary democracy, judicial review enables us as citizens to challenge the power of the state when we think it is acting unlawfully” (Open Democracy 04 08 2020).

In Northern Ireland the Executive and the Judiciary are aware of their respective roles in challenging the failure of Westminster to fulfil its obligations under the GFA98 as noted by Lord Justice Girvan in the challenge bought by Brigid Hughes against the Northern Executive Ireland regarding the death of her brother Anthony Hughes in the British Army’s SAS killings at Loughgall in 1987. Now the SAS faces further challenges in the Royal Courts of Justice in London in a judicial review of a “policy” to “commit” extra-judicial killings of Afghan civilians during the Taliban counter-insurgency Operation Herrick. 

[viii]

In England and Wales (and to some extent in Northern Ireland) judicial review is a relatively straightforward procedural challenge to decisions taken (or not taken) by public bodies. From experience, the system in Northern Ireland might be described, specifically in relation to challenges arising from the Legacy of the Conflict, as being more liberal in Belfast than in London. 

This may arise from the perspective of the Northern Irish judiciary of its role in maintaining the Rule of Law in their jurisdiction and appreciating the commitment to a human rights framework within the GFA98. 

Furthermore to date legal aid for judicial review has been more generous in Northern Ireland than in England and Wales. For example, Legacy Inquests in Northern Ireland benefit from the effective participation of the relatives of the victims by way of the provision of independent legal representation enabled by legal aid. 

In contrast, in England the relatives of the victims of The Guildford Pub Bombings 1974 have been denied legal aid despite its endorsement by the Coroner. The relatives of victims of The Birmingham Pub Bombings 1974 had to engage in an attritional conflict with the Legal Aid Agency (LAA) to secure financial support in the inquest into the murder of their loved ones despite the endorsement of the Coroner. 

Once legal aid is secured for a judicial review application in England and Wales the door to the court only opens ajar. Applications require permission from the court to proceed. Permission applications are initially made as paper submissions but can, within limits, proceed to oral applications. In 2018 only 5% of applications for judicial review reached a final hearing. 

Many challenges are settled between the parties. There are both merits and means tests required by the LAA. Self-financing applicants will need at least £20K to commence proceedings. 

Challenges are often funded by way of online funding platform such as Crowd Justice (if such a campaign is successful this is another reason for the LAA to refuse an application for public funding). Applicants can confront adverse cost orders as another obstacle to a full hearing. 

Third Party Interventions, for example by an NGO, are increasingly difficult to secure given the cost risk involved. A Third Party Intervention enables arguments to be made in support of the challenge by an entity that does not have direct locus in the challenge but whose arguments cannot be made by the Applicant. In Shamina Begum case the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism and The National Council for Civil Liberties (“Liberty”) were interveners. Meanwhile, those agencies of the state whose decisions are being challenged have unrestricted access to legal representation via the Government Legal Department (GLD) and retained Counsel. 

[ix]

One SPAD’s ‘political litigation’ is another Whig’s perceived ‘check and balance’ by the judges of untrammelled Executive power in an unbalanced constitution. One right-wing think-tank’s fear of judicial overreach is another social-democratic think-tank’s interpretation of the Judiciary fulfilling the scrutiny and accountability role of a muted Sovereign Parliament, thus ensuring government for the common good. One Conservative Minister’s opposition to reviewable powers by unelected judges is another Islington literati sigh of relief that objectionable law can be scrutinised by an independent judiciary. Dennis Hutchings’ outrage at being arraigned for alleged criminality in the death of JP Cunningham (an adult with learning disabilities) in County Tyrone in 1974 and his use of judicial review to challenge the decision to prosecution is JP Cunningham’s family relief that they will have a day in court to face the suspect and to achieve some semblance of truth and accountability – and possibly justice – about the death of their loved one. A decision to prosecute taken by an independent law officer, based on acceptable thresholds of proof, much to the chagrin of the Conservative back-benchers.

[vi]

The British Government’s response to the Covid-19 pandemic has been problematic. These are uncertain times and not everything can be planned for. But surely in such times, the March 2020 coronavirus lockdown, post-9/11 War on Terror, the financial downturn following 15 September 2008, the need for trust between the governed and those who govern is paramount. The (domestic) Democratic Mandate must be suspended in the best interest of the common good in terms of a (global) Emergency.

An Elective Dictatorship, which is effectively what exists in Britain following the most recent General Election, assumes Executive Dominance at the expense of Parliament and the Judiciary. This means that that Executive can command the legislative agenda and exercise what are in effect unreviewable discretionary powers. Add to this mix the fears of right-wing think-tanks and unelected SPADS about the perceived political interference by an overreaching judiciary protecting the interests of civil troublemakers such as Gina Miller or terrorist brides such as Shamina Begum and the Molotov cocktail of constitutional ‘crisis’ is in effect complete. 

The analogy I expounded regarding the travels and travails of Dominic Cummings and his Passion in the Rose Garden of 10 Downing Street illustrates the absolute contempt demonstrated by a member of the Executive at the peak of the pandemic. Dominic Cummings represents an agenda of reform of delivering governance – the Democratic Mandate – by way of organisational planning and technocratic decision-making and forecasting enhanced by the concerns of those influencers in right-wing think-tanks. This agenda is to be delivered unconstrained by the ‘traditional’ (Lockean-Burkean) constitutional conventions of checks and balances, of accountability, fiduciary duty and trust, to bring forth government for the common good. 

The agenda is about risk-taking in an age of uncertainty. Individuals cannot be coerced to be risk-averse and the current pandemic illustrates the need for individual responsibility (matched by protected individual rights) but risk-taking by a dominant Executive, controlled by unelected Specialist Advisers such as Dominic Cummings, without recourse to accountability or scrutiny by way of parliamentary process or judicial challenge must be resisted. 

Christopher Stanley is Litigation Consultant with KRW LAW LLP, Belfast.