The power of unelected judges – Part 1 of 2
30 May 2011
Two court decisions have upset UK governments this week. One is being appealed in the normal way by the Secretary of State for Education, but the other may lead to a fundamental rethink of the Scottish justice system. As a Bank Holiday special, this post is split into 2 parts.
he also believes that there are important constitutional principles at sake in this case about how Ministers make important and urgent decisions and what the role of the courts is in challenging such decisions. Gove wants the Supreme Court to consider these issues because of the huge importance of judicial reviews, which are being used repeatedly by opponents of the government to try and stymie its agenda.
Shoesmith was dismissed by Haringey Council following the fall-out over the Baby Peter case. The Court of Appeal overturned the decision of Mr Justice Foskett in the High Court to find that the sacking, a decision which had effectively been taken directly by the Secretary of State himself, had been procedurally unfair. Shoesmith had been “simply and summarily scapegoated“.
Judicial review is a means by which citizens can challenge the decisions of public bodies – for more, see my cut out and keep guide. It is very difficult to succeed, as it is not enough to show a decision was unreasonable; it has to have been irrational, illegal or procedurally unfair.
If the Spectator quote is correct, Gove may have in mind the decision of the High Court in February (see my post) that the cancellation of new school buildings in six areas was unlawful. A number of other decisions have been successfully challenged in the courts, including most recently the decision to withdraw funding for legal advice centres in Birmingham. This will undoubtedly be frustrating for those in central government attempting to implement the Coalition’s policy agenda.
Why is this decision particularly frustrating? Leaving aside the public money which will be spent paying Shoesmith’s considerable damages, the court is challenging a minister’s power to make a quick decision – in this case, to sack a senior public servant – in respect of a matter of great public importance. The court made a strong statement that executive power would not go unchecked, even in matters where the public wanted urgent action. Lord Justice Maurice Kay accepted that “the context – the protection of vulnerable children – is important and, together with a degree of urgency may impact on the requirement of procedural fairness“. However, on the other hand
Ms Shoesmith was the holder of a statutory office who was very highly thought of in Haringey… and the Secretary of State must have realised that his decisions would be likely to have catastrophic consequences for her.
And, just because “as a matter of policy one individual with ultimate responsibility and accountability in relation to children’s services” does not mean that “that person is to be denied the protections that have long been accorded to responsible and accountable office-holders.” The strongest statement of principle came in paragraph 66:
I find it a deeply unattractive proposition that the mere juxtaposition of a state of affairs and a person who is “accountable” should mean that there is nothing that that person might say which could conceivably explain, excuse or mitigate her predicament. “Accountability” is not synonymous with “Heads must roll”
It is not hard to see why this statement might frustrate a minister. It is unusual to hear a current minister defending his predecessor’s decision, but Gove would probably like to think in a child protection scandal involving significant public pressure for urgent action, he would be relatively free to act.
However, the court was not challenging the secretary of state’s power to remove a public official from their role, but rather the power to do it summarily and without sufficient consideration. As the court pointed out, all that would have been required to comply with fairness requirements would have been a short delay.
Legal blogger Obiter J has posted on the issue and argues:
It seems that the present government is concerned to restrict judicial review. Here we are in dangerous territory. Surely, the most important constitutional point is that Ministers must act in accordance with law.
If the case does reach the supreme court, it seems unlikely that the court will curtail its own powers to challenge executive decisions. However, it is also possible that by that time the matter will be less about constitutional principle and more narrowly about the procedural requirements under the Education Act 1996.
Part 2 of this post can be read here
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