1st February 2023
The working title of this post was something like “Boris Johnson, Nadhim Zahawi, and the creeping judicialisation of ministerial matters” – but that was perhaps too provocative and over-stated, even though it does have an element of truth to it.
One starting point here is that ministers of the crown are appointed, at least in constitutional theory, by the monarch, on the advice of the prime minister.
Another starting point is that parliament is the master of its own procedures, and what happens in parliament cannot be gainsaid by any court.
Both of these things – the hiring and firing of ministers and the affairs of parliament – are firmly in the realm of politics, rather than part of the province of law.
And those commentators and politicians who are hard against things like “judicial activism” and “unelected judges” are usually the most vigilant about judicial intrusions into the realm of politics.
There is a “political constitution” we are told, and it is not the business of judges and lawyers to get involved in what are matters of politics.
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But.
In the recent political matters of, first, Boris Johnson and the privileges committee and then second, the sacking of Nadhim Zahawi we are hearing phrases such as “natural justice” and “due process”.
The contention is that neither parliament nor the prime minister should have unfettered discretion.
There are things parliament and the prime minister cannot do, it is averred, because of the procedural rights of the politician involved.
This blog covered, you may remember, the “legal” advice commissioned by Johnson and his criminal lawyers to the effect that parliament was acting with conspicuous unfairness in its dealings with Johnson, even though it would never be a matter for any court.
This advice, we were told at the time, was “absolutely devastating” but, in fact, it absolutely missed the point.
This weekend just gone saw a similar complaint from supporters of Zahawi:
One response to these protestations is simply to scoff, especially as both Johnson and Zahawi are the sort of politicians who otherwise would criticise lawyers for “getting people off on technicalities”.
(And many such “technicalities” are procedural points, as opposed to substantive points on the merits.)
Like the proverbial “foxhole atheists”, it can be remarked that politicians who otherwise would disdain, if not despise, clever lawyerly tricks seem to have a change of heart about procedural fairness when their own rights are at issue.
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But scoffing alone would be wrong: for it is actually heartening to see due process and procedural fairness being given emphasis in political matters.
Of course, taking due process and procedural fairness seriously does not (necessarily) mean political matters being dragged into the courts.
The prerogatives and privileges of both the crown and of parliament mean that such matters are not justiciable.
And there is the danger of due process being misused.
In particular, there is the problem of prime ministers using inquiries and investigations as the means of not taking decisions which they are supposed to make themselves under our constitutional arrangements.
And there is the problem that, like with the (infamous) wait for the Sue Gray report, inquiries and investigations can be used as an excuse to avoid and evade proper parliamentary scrutiny and political accountability.
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Taking due process and procedural fairness (more) seriously is a welcome development, given the alternative of arbitrary and capricious decision-making.
Yet taking such things seriously means it should not matter whether doing so is politically convenient or not.
Fairness should always a basic value, and not a means to an end.
And so the best way politicians could show us that they do take due process and procedural fairness seriously is not when it is in their own cause, but in the cause of those far less powerful in society whose rights are undermined or disregarded.
For if politicians cared as much about the procedural rights of the less powerful as they do about their own due process rights, then that would show their protests were not just cynical, self-serving expediencies.
No doubt, however, such politicians would shrug off such uneven-handed inconsistency as, well, just a technicality.
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