2 - The politics of public law

Summary

Conflict between politicians and lawyers about the proper role of the law in political decision-making is not new, but events over the past twenty years in the United Kingdom suggest that some kind of breakdown is taking place. Political attacks on the judiciary, often connected with human rights and European Union law, are now commonplace. On the other side we see judicial musings about altering the accepted relationship between the rule of law and the supremacy of Parliament to the detriment of Parliament. The situation is made worse by an apparent separation of law and politics, or at least a separation of politicians and lawyers, so that each group finds the perspective of the other increasingly difficult to understand. In such circumstances, we should not be surprised to find that politicians interpret public law as essentially a political intervention by lawyers into politics and lawyers interpret it as a principled challenge to the lawlessness of politicians. The question this chapter poses is whether we can get beyond these two stereotypical characterisations and offer more nuanced descriptions of the relationship between public law and politics. In particular, can we treat the relationship between politics and public law not as a constant but as a variable, a relationship that can change over time and from place to place? If we can, we will at least have a more comprehensive way of describing the relationship that we might later be able to use to think about what the relationship should be.

An example

The difficulty of characterising the relationship between politics and public law can be illustrated by looking at one of the many confrontations between a British Home Secretary and the judges. In February 2013 the Home Secretary, Theresa May, writing in the Mail on Sunday, declared:

[S]ome judges seem to believe that they can ignore Parliament's wishes if they think that the procedures for parliamentary scrutiny have been ‘weak’. That appears actually to mean that they can ignore Parliament when they think it came to the wrong conclusion …

[T]he law in this country is made by the elected representatives of the people in Parliament. And our democracy is subverted when judges decide to take on that role for themselves.