Populism, petulance and power

8020758086_fc194a9c87_nYesterday at the New Statesman David Allen Green finished a piece on the Vicky Pryce case and the importance of juries with a broader reflection on the British constitution. At its core is the importance of balance and complementary strengths. The system may have evolved incrementally rather than by grand design. But it works. As Green argues:

the main merits of the British constitution are in respect of what each part stops another part from getting away with. The best argument for the Crown is in respect of the ultimate powers others do not have because of its very existence. The House of Commons can sometimes stop the civil service and ministers getting carried away either in bad law-making or implementation of policy; and the House of Lords can be a check on sloppy legislating by the House of Commons. The Courts can review and quash bad laws and decisions, and Parliament can change the law if the Courts’ decisions are unwelcome. No part of the British polity is really that impressive on its own terms; the value of each component lies primarily in the abuses it stops others committing.

This caused me to reflect on the current Government’s stewardship of the constitution. And there are plenty of signs that it is not being handled with care.

In some cases the balance is being disturbed almost casually and incidentally.

The most recent example would be some of Iain Duncan Smith’s comments about the Court of Appeal ruling that his beloved workfare scheme was in part flawed. You get the sense that IDS is a man at the end of his tether, which presumably won’t be helped by the fact that the extremely poor outcomes of the first year of the Work Programme have been made public today. All critics are likely to feel his ire – be they opposition politicians, geologists, radio presenters or senior judges.

Theresa May’s attack over the weekend on judges who fail to align their decisions with the Government’s wishes over the deportation of criminals would appear to have been more calculated. Last year Parliament approved new guidance for judges stating that Article 8 rights to family life are qualified. The Government was displeased that Article 8 was being invoked too frequently as the grounds for non-deportation of “foreign criminal”. They wish this to stop. But some judges have not stopped taking Article 8 into account. Ms May is displeased that judges are “ignoring parliament’s wishes”.

There are at least two interpretations of this episode. And I’m not sure which is worse.

The first is that the Home Secretary doesn’t understand how the law works. That she doesn’t know that what she seemed to be expecting is impossible. The Human Rights Act and the UK’s international obligations are going to take precedence over guidance issued by Parliament which is not embodied in statute. So, of course, when the circumstances of a particular case require it, judges are going to depart from the wishes of Parliament and follow legal precedent.

I’m no lawyer, but even I know how it works. You would have thought a basic grasp of these processes was some sort of minimal requirement for a Home Secretary.

On this interpretation, May’s attack on judges is simply wrongheaded and misguided.

The other interpretation is that May knows perfectly well how it works and that her criticisms of the judiciary are not coherent. But that isn’t the point. She ploughs on regardless because the key to this is populism. She is fuelling the outrage of certain segments of the media and the electorate who lack much grasp of the law but get very exercised by foreigners, criminals, foreign criminals, inadequate punishment, “human rights” and apparently liberal judges.

In the process May accuses judges of “subverting” British democracy by not following the guidance issued by Parliament. Of course, implicit in this view is the equation of Parliament with democracy. Yet, this is constitutionally illiterate. The judiciary are there precisely as an independent check on Parliamentary abuses and, in a human rights context, as a defence against the tyranny of the majority. The executive may find this an inconvenience. But that’s the point. The judiciary are as much as part of our democracy as the executive and the legislature.

Indeed, as the balance of power within Parliament has swung further in favour of the executive the role of the judiciary arguably becomes ever more important. That the executive would then seek to undermine the role of the judiciary as an effective restraint on its power should perhaps not be surprising. But if it makes a concerted effort to subvert the authority of the judiciary then that should be a serious concern to anyone who cares for a genuinely healthy democracy.

And trundling along in the background is something more obscure. But it is perhaps just as significant for its impact on individuals who face potential injustice at the hands of the State. It is the fate of the Administrative Justice and Tribunals Council. As I blogged early last year, the AJTC was lined up for abolition as part of the Coalition’s bonfire of the quangos. It was included in Schedule 1 of the Public Bodies Act 2011 as a body that could be abolished at some point in the future by Government order.

In early 2012 the Public Administration Select Committee investigated the proposed abolition of the AJTC. It concluded that while there may have been a case for reform to reduce overlap in the remit of various quangos, the case for the abolition of the AJTC was not made out. Witnesses before the Committee took different positions. Or rather the Government thought abolishing the AJTC was a good idea while almost everyone else thought it was a bad idea. The Select Committee therefore called for the Government to think again.

In particular, the Select Committee report deprecated the Government’s proposal that key AJTC functions should be brought within the Ministry of Justice. The independent scrutiny of administrative justice is essential. It needs not only to be done but be seen to be done. Yet we know from the experience of other countries where the functions of quangos have similarly been brought “inhouse” to the relevant Ministry continued independence can rapidly be thrown into question.

The Select Committee’s intervention may have given the AJTC a stay of execution. But it was a postponement rather than a pardon. On 18th December 2012 the Government laid an order for the abolition of the AJTC before Parliament.

But there is still concern. The Justice Committee is having another look at the issue. It finished taking a new round of evidence last week. So we await a further report. I don’t hold out a great deal of hope that the Government will be swayed from its course. But its persistence is rather perverse. Abolishing the AJTC is going to save a tiny amount of money, while at the same time seriously imperilling the cause of administrative justice. We already know that frontline decisions making in the public sector can be poor – a high proportion of decisions are overturned on review. As austerity bites and resources are more constrained the likelihood of high quality decision making decreases. The need for independent scrutiny is greater than ever.

We can piece together the various developments to conclude that we face an administration with an even stronger aversion to being held to account for its actions than other recent examples. It wishes to remove impediments to the exercise of that power, however arbitrary.

I must admit to finding the Conservative position on constitutional issues rather odd. When it came to reform of the voting system or the House of Lords existing systems must be preserved, however archaic and inefficient. Yet, in the matters of checks and balances – that sit at the core of our constitutional settlement – there is a preference for high-handed action and destabilising the balance of the system.

Maybe the mistake is in expecting or seeking coherence. Or maybe the coherence is to be found in naked self-interest and the exercise of power. We’re only small-c conservative when it favours our cause. Constitutional vandalism will do just nicely if it is to our short term advantage.

Image: avail via flickr.com under creative commons

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