Separation of Powers
How important is an independent judiciary?
The value of separation of powers is not the specific roles of the legislature, executive, and judiciary, but rather the simple fact that there are multiple competing sources of power, and that they are subject to different influences and incentives.
The true guardrails for liberty are (1) the existence of multiple competing sources of power which have legitimacy independently of one another; (2) a general appreciation of the value of liberty among the political class.
If the political class cease as a whole to believe in the value of liberty, no human institutions can preserve it. Nor can one impose liberty on population which does not value it simply by getting the institutions right.
No organ of government can be the sole protector of people’s rights and freedoms, and it is immensely dangerous for any institution to conceive of itself in such terms. Any organ of government at all, if given unlimited power, is a threat to liberty.
If there is a general appreciation of liberty, however, people will throw support in behind the organs of government (or indeed the private institutions) which are acting in support of liberty in particular cases.
The sources of power acting to defend liberty need not be the organs we typically think of as holding that role. They might be the courts or parliament, but they could also be the army (as has several times been the case in Turkey) or the monarchy (as was most famously the case in Spain).
The judiciary does have some unique characteristics, in being bound (to some degree) by the written law and by precedent. It is, in most cases, more predictable in its operations than other organs of government – and to the extent that it is not predictable, we generally regard this as a flaw. It also has some disadvantages – it is usually slow-acting, for one.
The judiciary undoubtedly privileges the viewpoints of the articulate in a way that sheer vote-counting does not. This can support and enable oppression, or prevent it, depending upon whether oppressed groups are more articulate than their oppressors.
It is, above all, comprised of humans. This means that like any other organ of government run by humans, it is liable to engage in power grabs; it may seek (whether openly or subtly) to advance the substantive political views of the people who run it; and of course sometimes it makes plain and simple mistakes.
Many people, especially on the right, blame judgements they don’t like on “judicial activism”. The simple fact is that judicial activism and judicial power grabs are, while perhaps undesirable, entirely to be expected and indeed they are nothing new. Systems of government should be designed and arranged in the expectation that the judiciary – like every other organ – will seek to expand its own power.
(This does not mean that all judiciaries are always seeking to expand their power. Clearly some judiciaries maintain an ethos of deference to democratic or other government, and others have a weaker or no such ethos. Moreover the ethos within a given judiciary may well change over time.)
Various member states of the EU recently accused the ECHR of “overreaching” with regard to migration. Alain Berset wrote a response arguing that the court needs to be independent, and that “institutions that protect fundamental rights cannot bend to political cycles”. He is partly right.
There needs to be at least one institution which protects fundamental rights and which is not in hoc to popular opinion. Indeed, it is probably good for there to be more than one. It is not the case that all institutions which protect fundamental rights must be insulated from the popular will, or that the popular will is the only (or indeed greatest) threat to fundamental rights. Parliaments can and do act to protect fundamental rights, and the judiciary can itself be a threat to liberty.
The key error made by both sides of the popular debate is to suppose that particular organs of government, or particular sources of legitimacy, must always win. The judiciary is allowed to disagree with other organs of government – and those organs are allowed to out-muscle the judiciary. The popular will is allowed to rage against government decisions – but sometimes the people do have to swallow their medicine. Again, there should be multiple, competing sources of legitimacy and state power.
It is probably unhelpful for the operations of an efficient government to have too many sources of legitimate power. Moreover, if there are too many such organs, many of them will individually be quite weak and unable to resist authoritarianism. But three or four seems to be a good number. It is sensible for the judiciary and the representatives of the popular will to be among these; whatever else fills the roles is, if not arbitrary, considerably less obvious.
It is unfortunate, in this light, that independently minded monarchy has fallen out of fashion. Monarchs were a source of power with their own legitimacy, able to wield this against overreach by other government organs. Admittedly, monarchy is especially bad when it achieves absolute power, but our aim should be to prevent any organ at all from achieving true supremacy.
Indeed, we frequently forget that when Montesquieu originally formulated his theory of separation of powers between the Executive, Legislature, and Judiciary, the Executive simply was the King. The decline of royal power happened for good reasons, but it has muddied the distinction between Executive and Legislature France and Britain. In the USA, where the President largely retains the powers of an 18th-century monarch, the distinction continues to make sense.
The last twenty or so years in Britain, and in many parts of the West including the central institutions of the EU, has seen an increase in judicial power. It has broadly seen a decrease in the freedom of the median individual, although certain minorities who previously experienced varying levels of disadvantage and even oppression are undoubtedly freer.
In one or two cases, the general decline in freedom has been connected to liberating minority groups – the war against free speech has largely focused on criminalising “hate speech”. The decline in freedom has been too broad-based for this to be the sole or fundamental cause, however. Gay rights have little connection to increasingly onerous and intrusive regulation of business decisions, or to paternalistic regulation of food and drink.
Nor is a rise in judicial activism the key cause for these changes, which have proceeded from legislation. Some elements of the judiciary – in particular the Crown Prosecution Service – have weaponised the new laws, but they weaponise the laws that politicians and the civil service give them. In general, all that can be said is that a stronger judiciary has failed to provide a bulwark against more authoritarian government.
The fundamental cause, surely, is simply that the political class, and especially its elite, has a weaker belief in the value of liberty than it used to. Given that unfortunate truth, no institution was likely to preserve liberty; and there is no means of restoring liberty which does not involve raising the next generation of British elites, as a whole, to value liberty more highly than their parents do.
Notable (in agreement with your overall thesis) is that Britain's laws on speech have been atrocious and authoritarian for many generations now; the Online Safety Act is no worse than the Communications Act, is no worse than various Public Order Acts, etc. What's changed is precisely the lack of a general-purpose small-l elite liberalism.