How far can judicial review go before it trespasses on the proper function of government and the legislature? What is the proper role of the judiciary in constraining the actions of the democratic state?
Last week, UK Supreme Court nominee Jonathan Sumption Q.C.raised these questions in a speech on the subject of the widening scope of judicial review in the UK .
He concluded by warning that if it is perceived judges are reviewing the merits of legislation, there will be pressure for some kind of democratic input into their selection. He would regard this as a very unfortunate outcome because it would politicize the bench and undermine its reputation and perceived independence.
“The judiciary cannot realistically expect to participate in the process of political decision making in a democratic constitution while remaining immune from any kind of democratic influence over their selection”
He describes the natural tension between democracy and judicial review, except where it is confined to the application of policy to a particular situation. The conflict arises where the review is applied to the propriety of the policy. Where does law end and policy begin?
Decisions of the courts on the abuse of discretionary powers, he says, “are based far more often than the courts have admitted on a judgment about what it is thought right for Parliament to wish to do.”
The problem, he says, is sometimes not so much a lack of clarity in the expression of Parliament’s will as a radical difference between the collective instincts of the judiciary and those of politicians facing the electoral process. The judiciary and the executive see issues from opposite ends of the telescope: judges are influenced by their experience with individual cases. Politicians are concerned primarily by the problem viewed impersonally.
Sumption argues that by giving legal effect to the Human Rights Convention in UK law, certain policy matters – particularly including penal policy, freedom of expression and immigration – have been transferred out of the political arena into the realm of judicial decision making where public accountability has no place.
The Strasbourg court he says has treated the Convention not only as a safeguard against arbitrary exercise of despotic power, but as a template for most aspects of life including matters which are governed by no compelling moral considerations one way or the other.
Sumption says the way different countries have dealt with abortion illustrates how different societies address the same issues. These are not really issues between the state and its citizens but between different groups of citizens, and are resolved by the democratic process in different ways.
In Sumption’s view, parliamentary scrutiny is perfectly adequate for the purpose of protecting the public interest in the area of policy making, and it is the only way of doing so that contains any democratic legitimacy.