Labour plan to shift power back to courts: a nudge in the wrong direction?
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Version 0 of 1. Lawmaking used to be a simple enough process. Parliament passed legislation and the courts interpreted it. For that to process to work, however, governments have to formulate their objectives and write them into an act of parliament. That way, though, ministers run the risk of getting the blame when their policies turn out to be ill-conceived. So it must be very tempting to introduce "nudge" legislation. That way, ministers get the credit when the bills are passed and judges get the blame if the legislation doesn't achieve the promised results. We saw an example of this on Tuesday when Sadiq Khan, the shadow justice minister, complained that the courts had not interpreted section 2 of the Human Rights Act 1998 in the way that Labour had intended when it drafted the act. The legislation says that judges in the UK "must take into account" decisions of the human rights court in Strasbourg. The problem, as Khan sees it, is that UK courts have acted as if Strasbourg decisions were binding on them. "As a result, the sovereignty of our courts and the will of parliament have both been called into question." This is a perfectly respectable argument, although our judges fully accept that in seeking to "mirror" decisions by the human rights court they have sometimes gone too far. But Khan's solution was a nudge – followed perhaps by a fudge. "We believe we can achieve this shifting of power back to our courts by publishing guidance alone," he wrote, "but I don't rule out re-legislating to make things doubly clear if matters don't improve." It's not clear what Khan means by "re-legislating" but it sounds as he would be asking parliament to repeat what it had said already – which would be pointless or even counterproductive. And academics wasted no time in pointing out the flaw in Khan's initial proposal. "It is hard to think what effect extra-legal guidance will have on the approach judges take," said David Mead, professor of human rights law at the University of East Anglia. "The suggestion that courts' interpretation of section 2 of the act could or should be influenced by 'guidance' issued by the administrative branch of government is constitutionally dubious to say the least," wrote Mark Elliott, reader in public law at the University of Cambridge. Still, Khan is merely mirroring the man he shadows. This week, the justice secretary announced what he called "a signpost from parliament to the courts". Chris Grayling's social action, responsibility and heroism bill, to be known by the acronym SARAH, will "counteract the growing perception that people risk being successfully sued if they do something for the common good", the minister announced. It would "put the law more clearly on the side of employers who do the right thing to protect employees" in England and Wales. Grayling's bill has not yet been published but all these references to signposts, perceptions and clarification make it pretty clear that SARAH is another example of nudge legislation. And that's confirmed by a summary of the bill issued by the Ministry of Justice alongside the Queen's speech. These "lobby notes", as they used to be called before the much-prized summaries became freely available online, confirm that the purpose of Grayling's bill is to "create peace of mind by reassuring those who are acting for the benefit of society, demonstrating a generally responsible approach towards protecting the safety of others or intervening in an emergency, that the courts will consider the context of their actions in the event that something goes wrong and they are sued for negligence or breach of statutory duty". But, as the notes confirm, "the bill does not tell the court what conclusion it should reach and does not prevent a person from being found negligent if the circumstances of the case warrant it". In other words, it won't change the law. All it does is to require courts to consider factors that they are likely to take into account already – a perfect example of "heads-we-win, tails-you-lose" nudge legislation. |