Parliament must rule – not judges

The government is right to challenge the power of the judiciary.

Richard Johnson

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Topics Politics UK

On Monday The Times led with the misleading headline ‘PM plans to let ministers throw out legal rulings’. The substance of the article contradicted the headline, reporting that parliament will be invited to vote on matters of judicial interpretation, exercising its right to overturn the courts where it disagrees with their decisions.

This is not a new power. It is at the very heart of British constitutional practice. It was, therefore, both puzzling and frustrating that supposed expert commentators argued that such moves were in defiance of the British constitution. Many seemed to be muddling American nostrums of the ‘separation of powers’ and ‘checks and balances’, while neglecting the principle of parliamentary sovereignty.

This confusion has been all the more noticeable to me as a British academic expert on US politics. For not only do these commentators misunderstand British constitutional practice, but they are also out-of-step with the current US debate over judicial power. At the same time that the British left seems to have fallen in love with judicial power – in yet another repudiation of its historical traditions – the American left has rediscovered its rightful distrust of the courts.

Historically, democratic reformers in the United States recognised the serious threat judicial supremacy posed to democratic inclusion, racial equality and labour power. In 1857 the US Supreme Court declared that black people could not be US citizens under any circumstances. To overturn this decision required a constitutional amendment. This was produced a decade later, but it took a Civil War to get there. In the meantime, President Abraham Lincoln called on Americans to ignore the Supreme Court. At his inauguration in 1861, Lincoln famously declared: ‘If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court… the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.’

My book, The End of the Second Reconstruction, is largely a story about the fight of civil-rights and labour-rights activists against judicial supremacy. With only a few brief exceptions, the court has typically limited African Americans from enjoying the full fruits of equal citizenship and impaired labour legislation – including laws on health and safety, wages and overtime.

Even in the midst of the Great Depression, the Supreme Court tried to limit the expansion of the welfare state and employment programmes designed to rescue millions of Americans from the indignity of poverty. It was only when a left-wing government, under Franklin D Roosevelt, threatened to disable the power of the courts by appointing numerous new judges that the justices ‘rediscovered’ the constitutionality of such provisions.

For this reason, there has long been a healthy scepticism of court power in the US, albeit one that was temporarily obscured by what was seen as the promises of the progressive Warren Court (named after chief justice Earl Warren) in the mid-20th century. I argue in my book, however, that even the Warren Court should not be lionised as it has been: most of its efforts were simply undoing the damage of previous courts.

In the US system, the court has asserted its supremacy for over two centuries. Some scholars have questioned this, much like Lincoln and Roosevelt did. Harvard’s Mark Tushnet, who began his career as a clerk for Supreme Court justice Thurgood Marshall, argued in Taking the Constitution Away from the Courts that the US Congress and US president should be prepared to ignore or overturn Supreme Court decisions which they find to be egregiously wrong.

This takes me to the latest proposals in Britain and the bizarre reaction to them, mostly but not exclusively coming from the left. Unlike the US Constitution, the UK constitution does not maintain the fiction of separate, co-equal branches of government sharing power. All legitimate political authority comes through parliament, elected by the people, which is sovereign and enjoys full legislative freedom with no formal checks on its activity. Now that we are out of the EU, there is no higher law that can be used to undo parliamentary statute.

Raymond Seitz, who was US ambassador to the UK in the early 1990s, marvelled at the British constitution compared to his own. He reflected:

‘Coming from this kind of fractured, fractious federal background, an American arrives on British shores astonished to discover how unfettered a modern British government is… It took me a long time to understand that a British government, with a simple majority in the House of Commons, can do pretty much what it wants to… I kept looking for the constitutional checks and institutional balances that could stay the will of the British government. But I could find none.’

The ‘check’ in the British constitution has long been understood to be political. While parliament can technically legislate how it likes, and while governments have sweeping prerogative powers, both are constrained by politics, not by law. A British government can use its prerogative powers to go to war, to sign treaties and to prorogue parliament. But the check in this arrangement ought not to be a judge or a document. The only check is the necessity of the government, at all times, to carry the confidence of the House of Commons. At any moment, if MPs feel that the government has gone too far, in one simple act – a vote of no confidence – MPs can bring down a government.

For the majority of the party’s history, Labour politicians understood the transformative potential of this system. A simple majority in the lower chamber of the legislature could be enough to drive through a sweeping socialist programme with no threat of judicial constraint. Indeed, the Labour Party began its life as a parliamentary party challenging judicial power. One of the first actions of the first Parliamentary Labour Party in 1906 was to overturn an egregious court decision that would have financially crippled the trade-union movement.

If the current government’s reforms simply mean that parliament will be invited to vote annually to clarify its position on court rulings MPs find to be egregious or wrongly decided, then this is surely something to be celebrated, not to fear. It is an assertion of the democratic principle that the people are the masters. Yet, it seems that many in Labour would rather look to the judges as our safeguards rather than to the electorate. This is yet another sad indication of Labour’s slide from democratic socialism and labourism to progressive liberalism. It is a turn away from democracy.

Richard Johnson is a lecturer in US politics and policy at Queen Mary, University of London.

Picture by: Getty.

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