The Economist USA - 22.02.2020

The EconomistFebruary 22nd 2020 Britain 57

2 from ensuring ministers stick to the law
into evaluating the merits of policies. The
title of the government’s main booklet of
legal advice, “The Judge Over Your Shoul-
der”, paints its own picture.
Jonathan Sumption, a former supreme-
court judge, lent that charge intellectual
heft last year with a series of lectures on
“law’s expanding empire”. Policy Ex-
change, a think-tank, runs a judicial power
project, highlighting claims of “judicial
overreach”. It is true that senior judges are
doing more than in the past. The critics are
right that the annual tally of judicial re-
views has jumped, from a hundred or so in
the 1970s to several thousand now. Judges
are not immune: building work on the new
Supreme Court was itself subject to an ap-
plication for judicial review.
Others argue that the rise simply re-
flects the growing size of the statute book
and the powers exercised by the state. Par-
liament passes 30 or so new laws a year, and
they are growing chunkier. From 1930-50,
the average act was 16 pages long. It now
typically runs to 86 pages. Some cases are
the “inevitable consequence of the devel-
opment of people’s individual rights”, says
Charles Falconer, a former lord chancellor.
Tabloids are fond of accusing judges of
placing too much emphasis on the human
rights of prisoners or terrorists, but politi-
cians instructed them to do so. Under the
Human Rights Act of 1998, judges must
evaluate whether or not domestic law is
“compatible” with the European Conven-
tion on Human Rights.
The biggest growth category is immi-
gration. In fact, apart from such cases, the
number of judicial reviews has remained
roughly flat since the millennium. It is
hardly surprising that, since successive
governments have introduced more immi-
gration laws, Home Office decisions are
more regularly being challenged in court,
says Joe Tomlinson of the University of
York. The data do not suggest widespread
abuse of the system. An academic study
commissioned by the Public Law Project, a
charity, found that only 3% of a sample of
judicial reviews were brought by activist
groups. Though several more may have
been brought by people acting on behalf of
such groups, most claims are made by indi-
viduals. Paul Craig of Oxford University ac-
cuses judges’ critics of cherry-picking
cases. Academics will always disagree
about interpretations of the law in particu-
lar cases, he says; that does not amount to
evidence of systemic failure. Besides, since
the courts have no power to strike down
legislation—as they do in America—Parlia-
ment is always free to clarify its wishes
with a new law.
One difficulty the commission will face
is that the critics of the current dispensa-
tion do not agree on their diagnosis of the
problem. For instance, Richard Ekins, an-

other Oxford don who runs the judicial

power project, reckons the prorogation

judgment was a “pretty shocking” example

of judges’ willingness to remake constitu-

tional law on the fly. Lord Sumption thinks

it was perfectly sound.

Nor do the critics agree on the prescrip-

tions for reform. Mr Ekins wants a Consti-

tutional Restoration Act to reverse the ef-

fects of the prorogation judgment, rename

the Supreme Court and increase ministeri-

al involvement in judicial appointments.

Lord Sumption, meanwhile, essentially

wants the judges to have a stiff word with

themselves.

The government should tread carefully.

Lord Sumption is right to warn that “judges

are famously resistant to having their

wings clipped”. Previous attempts to re-

form judicial review have been dropped or

scaled back. And there is no guarantee that

the public will support reforms. Some

might decry individual judgments, but

judges are pretty popular on the whole. Ac-

cording to a poll by ipsosMori, more than

four-fifths of Britons trust them to tell the

truth, while less than a seventh say the

same of politicians. If ministers are seen to

be interfering with the independence of

the judiciary, they will be judged harshly. 7

L

ike prizefighters before a bout, the

euand ukare taking up ever tougher

stances ahead of upcoming trade talks.

On February 17th David Frost, the British

negotiator, said Britain’s rejection of any

eusupervisory role was not a negotiating

tactic but the point of the whole Brexit

project. A day later his eucounterpart,

Michel Barnier, reiterated that any deal

would require acceptance of some eu

rules. Meanwhile eumember states are

gleefully adding conditions of their own

to the negotiating mandate.

One is a proposal by Greece, backed by

Cyprus and Italy, to demand “the return

or restitution of unlawfully removed

cultural objects to their country of ori-

gin”. The Greeks insist piously that this

refers solely to the fight against trade in

stolen artefacts, since London is a centre

for antique dealing. But eudiplomats

note that the Greek government thinks

that the Parthenon marbles in the British

Museum were stolen by Lord Elgin in the

early 1800s. And Greece’s culture min-

ister has said that Brexit increases Euro-

pean support for their return.

The British Museum strongly sup-

ports the fight against trade in illicit

antiquities. But it also insists the sculp-

tures were acquired legally. The govern-

ment says it will not even discuss their

return, which would require a special act

of Parliament. What this spat really

shows is the use of Brexit talks to pursue

other grievances. Spain is going after

Gibraltar. Several countries want to keep

on catching British fish. France talks of

getting rid of British passport controls at

Calais. Since any trade deal needs unani-

mous approval, why not pile on other

conditions? At least it creates bargaining

weapons to use in an eventual show-

down in what look like being rancorous

negotiations running up to the deadline

at the end of the year.

Will Britain lose its marbles?

Brexit negotiations

Greece sets its own conditions for any future eutrade deal with Britain