Danny Kruger and the rule of law

 

A week or so ago the New Statesman published an article by our new MP – Danny Kruger.

You don’t need to re-read that sentence.  He has not defected to the Statesman’s  left-wing political zone.  His article was headed ‘Another Voice’ – it was a sort of reader’s letter, a very long one.

Its headline explained why he wanted to have his say in this political periodical: ‘The New Statesman cover story was wrong.  Boris Johnson does have a vision but is misunderstood.’

However, before we got to the vision thing, Mr Kruger put on his Johnson Fan Club badge and got stuck into our independent judiciary.  It was enough Daily Mail to give a New Statesman sub-editor a heart attack.

He explained that Michael Gove MP (like Johnson a former hack) is now in charge of ‘the government’s reform of legal rights and responsibilities’.  That is Cummings code for ‘rein in the judges’:  Gove and his men ‘will examine the judicial review process by which judges can make policy’.

That last quotation from Kruger’s article is a woeful – even wilful – misrepresentation of the powers our judges have.  When they are asked, judges can – after hearing pros and cons and consulting precedent and so on – rule on whether a government’s actions are legal.  When they are not – for example in the recent Heathrow third runway ruling – the judges say so.  

They point to where a policy needs to be corrected to make it legal.  They do not ‘make’ policy.   You might stretch a point and say that on occasions, when they find illegality, they have to ‘unmake’ a policy or part of a policy. 

The judges do not ‘make’ Acts of Parliament.  With a court’s ruling in their Red Boxes, it is then up to Ministers of the Crown to change their law to make it legal.  This may put Ministers to some inconvenience and some bothersome work – it may even make them look pretty foolish – but it keeps the rule of law firmly on the case.

What Mr Kruger is really saying is that he and the government want a situation where the laws they make can with impunity break the country’s own laws – or international law. 

That throws out the ‘rule of law’ on which our unwritten constitution is based.  It was only five years ago that we marked the 800th anniversary of Magna Carta.  Has Mr Kruger forgotten that?

The government supports its notion that actions of the law – in headline terms, of ‘the judges’ – have got out of balance by calling on a bogus notion of democratic accountability.  They claim it is up to the electorate to throw the government out at the next election if they do not like its new laws – or just one of its new laws.

This is specious – even phoney logic – on three grounds.  First no election is ever won or lost on the basis of a single policy passed into law. A majority of voters can never be found to coalesce behind one particular policy.   Anymore than they can coalesce around a number of individual and targeted policies that could swing the national vote against a governing party.

A contested policy/law may affect a section of the electorate that is too small or too dispersed to impact on a first-past-the-post election.

Secondly – and probably most importantly – elections here only happen every five years.  (That is our form of democracy – democracy not being an absolute concept.)

If, for example, a major change is made to education policy, even if the electorate could throw the government out on that single issue, a complaining parent’s child may have already gone through its education under that part of the new policy with no recourse at all.  In the meantime a child’s life may, the parents will argue, have been ruined – or worse.   

Or, following an Act of Parliament changing the provision of health care, some may die before the election comes round to give people the chance to ‘throw the government out’ and change that health policy.  The law may be slow, but it is a damn sight faster than our democracy. 

Thirdly, illegal policies, perhaps those infringing an individual’s rights, cannot always be undone by a subsequent government – because of the expense involved or the complexity of the task or the unintended harm it may cause to some people or because the politics of the moment do not allow it.  

Without this power of the law to intervene and constrain politicians, a majority government elected for whatever mix of reasons, becomes autocratic.  The checks and balances disappear.   Or in the phrase the Conservative politician Lord Hailsham popularised in 1976, we live under ‘an elective dictatorship’.

Recourse to the law that allows question or challenge to a government’s laws is a valuable safety valve.  It puts power into the hands of those without any other recourse to opposition.  Without a safety valve, the system can blow.  

Remember the Poll Tax riots of 1989.  They were a far messier and more dangerous way to alter government policy than a bench of independent judges.