Judges can’t save Britain from bad politicians
It is deeply depressing that the British state has failed so comprehensively to police the nation’s borders that local councils find themselves with no other recourse than asking whether the hotels housing new arrivals have the requisite planning consents to do so, says Andrew Lomas
Amidst the sound and fury surrounding the court case brought against the owners of the Bell Hotel in Epping, one thing that strikes me is the extent to which our political culture increasingly looks to the courts – rather than Parliament – to solve problems created by politicians. There are several possible reasons for this.
The most obvious, perhaps, is the fact that the quality of the average MP has collapsed. It’s not a novel observation, but the Commons is stuffed to the gills with grey apparatchiks who have done nothing with their lives other than being a part of the politico-lobbying human centipede in Westminster. Judges, on the other hand – whether we think they are secret communists or not – are smart. Maybe they can save us instead?
Second is the extent to which the political class and the wider commentariat have become America-brained, without any deeper sense of English constitutional history (or English history in general). The result is that lazy assumptions are made as to the constitutional role of the courts in our political settlement that are just wrong and neglect the near unlimited power parliament has to ‘just do stuff’ (if it ever chose to actually exercise it). Instead, the prevailing attitude seems to be that, if the Americans can settle contentious policy questions in the courts, surely we can as well?
Third, politics itself is messy, poorly paid, and tedious. It often involves boring committee meetings in draughty church halls and compromising with people who we might think are idiots, bad actors, or worse. Sometimes politics involves losing votes, or at least the risk of losing. So why not seek a clever legal solution that will stop our opponents dead in their tracks without the antecedent difficulties?
Deus ex machina
And so we seem to have ended up here, repeatedly looking to the courts for a deus ex machina that never arrives. That’s probably why Gina Miller brought two judicial reviews to try and stop Brexit (how did that work out?). And it’s also why Epping Forest District Council is now seeking an injunction under section 187B of the Town and Country Planning Act 1990 to close a hotel it says has become a hostel in breach of planning laws.
Aside from anything else, it is deeply depressing that the British state has failed so comprehensively to police the nation’s borders that local councils find themselves with no other recourse than asking whether the hotels housing new arrivals have the requisite planning consents to do so. In the long-term, no nation can lose control of its borders and survive, yet the debate over the weekend has been centred on a judgment arising under the same laws that govern whether No.42 can have a loft extension or not.
But all is not lost. Perhaps the most striking part of Lord Justice Bean’s judgment in the Epping case was his reasoning that maintaining the injunction risked legitimising or incentivising those protesting against accommodating illegal migrants in their communities. What this points to – although this is probably not what the learned Judge intended or was getting at – is that street protest has its limits, and that the system only persists in its present form because so many ordinary people have abdicated from the wider political process. In short, there’s a reason that most MPs are so dreadful, and that’s because politics has by and large become the preserve of obsessives, freaks and fanatics.
That is not to diminish the protests, which have managed to push the border crisis to the top of the political agenda. However, the only way things will ultimately improve is if ordinary people take that same energy and apply it to getting people like them elected to parliament, rather than relying on – then railing against – the courts to interpret laws that have already been made as against facts that have already arisen. In all events, our history, traditions, and continued existence as a nation deserve a better battle cry than “Cry ‘God for Harry, England, and Section 187B…’” So on, on, you noblest English! Whilst the Judges won’t save us, maybe we can save ourselves.
Andrew Lomas is a barrister at One Essex Court