There is a breakdown in the rule of law in Britain – and the government is at the heart of it.
The latest evidence is in the government’s response to the Sharon Shoesmith Baby P case. David Cameron, the prime minister, is ready to throw good money after bad to challenge the Court of Appeal finding that the former Haringey council director of children’s services was sacked unlawfully at the insistence of Labour children’s minister Ed Balls.
The case has already cost £1m, but the money is neither here nor there; for Cameron it is a matter of principle – the principle that the government should be above the law.
He announced there would be an appeal to the Supreme Court because ministers want to uphold the principle that they – rather than the courts, through judicial review – should be responsible for their decisions. “It does seem to me important that governments are able to manage their organisations and provide accountability when things go wrong,” he said.
It is, apparently, a constitutional issue about ministers’ decisions being overturned by judges – on the face of it, one would have thought, an essential requirement if Britain is to be governed by the rule of law.
Unfortunately Cameron’s understanding of the idea of the rule of law is rather simplistic. He thinks Parliament is supreme so judges shouldn’t keep interfering with it. And since he’s the boss of Parliament, he must surely be the most supreme of all.
This was the prime minister who claimed the London university fees rioting was an example of a breakdown in the rule of law. He wasn’t talking about police kettling peaceful demonstrators or arresting people without charging them. He was talking about the rioters. A temporary and geographically limited breakdown in law and order perhaps, but a collapse in the rule of law?
So let us clarify for him what the rule of law is. This is the view of 19th century jurist AV Dicey: No one should be punishable except for a distinct breach of law established in the ordinary legal manner before courts of the land; nobody is above the law and everybody is subject to the ordinary law whatever his rank or condition; anyone may go to the law courts to remedy breaches in rights and liberties.
Dicey’s principles on the rule of law in the Law and the Constitution, 1885
“a. No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the courts of the land;
b. No man is above the law, whatever his rank or condition is, he is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals;
c. It is because England has a constitution that the personal rights and liberties of individuals are always secure. This security comes from being able to go to the law courts to remedy any breach of these rights and liberties.”
This raises many questions but is a good starting point for those like Cameron who don’t have much of a grasp on the basic theory. Take this for example: before the royal wedding he felt there were too many pen pushers and local authority busybodies demanding vast amounts of paperwork, health and safety checks and expensive insurance for street parties. His response?
“Let me put it like this. I am the prime minister, and I am telling you if you want to have a street party, you go ahead and have one.”
His clear view is that the will of the prime minister attached to a populist cause trumps the law and all the processes in place to ensure the law is followed. Street party organizers had permission from the highest authority in the land to ignore the law since the law was being unreasonably enforced by a bunch of bureaucrats.
Similarly with the Madeleine McCann case. The police, according to the classic view of the separation of powers, are independent from government. Yet Cameron has directed Scotland Yard to put millions of pounds of public money into further investigating the disappearance of the little girl, prompting Lord Harris to accuse him of driving a coach and horses through police operational independence.
Of course, Cameron only sent a letter. But the prime ministerial crest and the Downing Street postcode on the envelope would have ensured that it didn’t stay long in the Met’s pending tray.
In the Shoesmith case, Cameron’s objection is to a judicial review, the process whereby courts can examine the procedures of administrative bodies, including the government, to test their legality. The judges do not toss aside laws made by Parliament; they do not substitute their judgment for that of the minister on matters such as Shoesmith’s competence or culpability in the Baby P case. They simply examine whether the procedures used to arrive at the minister’s decision were correct and hence whether the decision was fair.
Judicial review became more accessible since reforms in the 1970s to allow ordinary people to, in Diceyan terms, remedy breaches of their rights and liberties. This is rather like that other Tory bugbear, the Human Rights Act. Cameron believes those rights and liberties are sufficiently protected by the fact that ministers are “accountable” – to Cameron himself.
When ministers have spread a bit more poison about unaccountable judges standing in the way of the democratically elected government, we may expect to see proposals for a “reform” of the way the judiciary is appointed. It won’t be difficult to undermine the Judicial Appointments Commission set up in 2006 as “an important step towards strengthening the drive to officially enshrine judicial independence in law, enhancing accountability and ensuring greater public confidence”. It has not done a good job in promoting diversity, it is extremely bureaucratic and unwieldy. But the real agenda will be to swing the balance of power back towards the Supreme Leader.
Note: The Supreme Court has now rejected leave to appeal in the Sharon Shoesmith case (2 August 2011)
Also as predicted above, the Ministry of Justice has now (November 2011) made its proposals to give the government more say in judicial appointments, discussed here