Separation of the judiciary from other branches of power is a recent innovation in Britain’s constitution. The supreme court was established in 2009 and a culture of respect for the independence of the courts is not deeply entrenched.
Earlier this week, Lady Carr reminded Sir Keir Starmer and Kemi Badenoch of that duty. The lady chief justice rebuked the prime minister and the Conservative leader for exchanges in the Commons last week regarding a court decision in the case of a family of refugees from Gaza. Earlier this year an immigration tribunal recognised the validity of their entitlement to settle in the UK under the European convention on human rights, overturning a previous refusal. Mrs Badenoch said this was the wrong decision and challenged Sir Keir to agree. He did, adding that the decision should not stand and that the relevant “legal loophole” would be closed.
Lady Carr described both the question and the answer as “unacceptable”. The objection, distinct from the humanitarian merit of the original asylum claim, is that a judge’s decision should not be denounced from the dispatch box. If ministers don’t like a ruling, they can appeal against it. That is how the constitution works.
As a former barrister with a background in human rights, Sir Keir knows this well enough. Before entering Downing Street he was committed to preserving and reinforcing the line that Lady Carr has now been forced to bring back to his attention.
Mrs Badenoch, by contrast, is continuing a trend of growing Tory contempt for judicial independence. Eurosceptic Conservatives were intensely irritated by a court ruling that upheld parliament’s role in Brexit – a tussle that culminated in the supreme court overturning Boris Johnson’s unlawful prorogation of the legislature in 2019. In subsequent years, Mr Johnson and his successors switched their ire to judicial decisions that obstructed plans to deport asylum claimants to Rwanda. That led to the constitutional absurdity of a parliamentary bill declaring that the east African state must, by law, be considered safe.
To Sir Keir’s credit, that statute is to be repealed. But last week’s Commons exchange is a worrying sign that the current Downing Street regime is experiencing some of the same frustrations as the last one, and vulnerable to the same political impulse – denouncing judges and decrying “loopholes” when courts uphold fundamental human rights regarding immigration.
That isn’t the only contested area. Lord Hermer, the attorney general, has been targeted for attack by Conservative media for cases he defended as a barrister before being appointed by Sir Keir as the government’s most senior law officer. There is no evidence of wrongdoing, only insinuations of liberal bias and a tendentious allegation of conflicts of interest. That hostility is stoked by a whispering campaign from within Labour ranks suggesting that the attorney general’s pernickety attitude to lawfulness gets in the way of dynamic government.
The impulse to subordinate law to executive will is debilitating to a democracy, as Donald Trump is demonstrating. The US president rails against constitutional safeguards that deny him untrammelled power. He has many cheerleaders on this side of the Atlantic, including a Conservative party that has already proved itself unsafe as a guarantor of judicial independence. All the more reason for Sir Keir and Labour to hold the line.
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