“Democratic Deficit”

Much is written and said about how it is undemocratic for unelected judges to make decisions that have an impact on public policy.

An interesting article last week in the UK Human Rights Blog makes the point that it is not so much the unelected bench that results in a democratic deficit, as the lack of meaningful public access to court decisions.

The authors point out that although judges may be somewhat out of touch, in the eyes of the public they are objective and fair.

The problem, they say, is that the courts are failing to use technology to open up the justice system and provide meaningful access to justice to the extent possible in the internet age:

But aside from a few isolated examples, no summaries are produced for the thousands of cases each year which are decided in the Administrative Court and Court of Appeal, both of which are central to the public law system. The public, who the law affects fundamentally, are left trawling through dense, legalistic judgments. If the want to understand what it all means, they have to employ a lawyer.


  1. Seeing as how John Q Public can’t rely on its elected politicians to deal with certain politically untouchable “public policy” issues, these issues are left to the courts to address.

    Furthermore, courts have no choice but to deal with the cases before them. What are they supposed to do? Turn people away and say: “We can’t deal with that.” That is not how courts operate.

    If the people (through their politicians) don’t like what the courts are deciding, then the people can get the politicians to change the law and overrule the courts. In some cases, courts can do what politicians can’t, but politicians can always trump the courts as they are the legislative body and can change the law. This power is up to and including changing the consitution.

    Of course, the fact is that John Q. Public is generally ignorant of how the political system works, its three branches and how they relate to each other. The partisan chicanery that dominates the airwaves and a daily basis is mere puffery and not reflective of how things actually get done. Anytime you hear someone questioning why the Official Opposition is opposing legislation, they are clearly demonstrating that they don’t get it. I note that this seems to be most political commentators in most media. Is it any wonder that most people are so ill informed?

    As well, most people don’t seem to understand that most statutory law (I think it’s fair to say though I concede I could well be wrong) flows from common law in some way shape or form. New things come along from time to time, but we’re still living in a legal world established by legal practice and tradition (warts and all) since the Magna Carta.

    I could rant more, but in my view, the author has it wrong. Democratic deficit resulting from judicial rulings impacting on public policy isn’t the case. It’s a failure of understanding on John Q. Public’s part to understand that notwithstanding the fact that a legislature passes a law, how that law is applied in any given situation is determined by the courts. If the legislature doesn’t like what the courts are doing, revise the law. The legislature has the wherewithal to do this as they do on an annual basis with the Income Tax Act. It’s standard operating procedure in that arena, so there’s no reason the same behaviour cannot be applied in other legal arenas.

  2. According to the human rights blog, then, there was no ‘democratic deficit’ due to the nature of the judicial process say 20 years ago, but now there is, because the technology of wide dissemination of decisions now allows for a different breadth of understanding – if the system would only produce understandable summaries of the ‘thousands of cases each year’ that the public is dying to read and understand.

    I don’t think ‘can’ turns into ‘should’ turns into ‘is at fault for not’ quite so readily. Something can be desirable without its absence being a shortcoming of our democracy.