Judicial overreach

The Adam Smith Institute approaches 2026 with confidence, not because it underestimates the problems Britain faces, but because it believes those problems can be solved, and because it intends to spend the year proposing solutions to them. If the present government turns a deaf ear to those solutions, perhaps its successor will be more attentive.

One of the problems the ASI will be looking at is that of judicial overreach. It used to be the United States that had problems trying to have its courts make rulings that would make other countries follow its rulings, but other courts have been ploughing the same furrow. And judicial activists in several countries have been using that tendency to subvert the decisions of elected governments and have them overruled by unelected judges.

The UK’s Supreme Court has tried to extend a remit it was not given, namely to judge on the constitutionality of Parliamentary decisions. Its declaration that the late Queen’s prorogation of Parliament was illegal was described by Jacob Rees-Mogg as a ‘constitutional coup.’ He was correct. Its use of external courts such as the ECHR to void decisions made by elected UK governments effectively negates the sovereignty of Parliament, which is one of the cornerstones of our democracy.

The ECHR is also unelected. The idea that a foreign judge could issue a late-night ruling to thwart illegal immigrants being sent to Rwanda undermines the sovereignty not just of Parliament, but of the United Kingdom itself.

When the International Court of Justice issues a warrant for the arrest of the Israeli Prime Minister, but does nothing about governments that routinely practice terrorism and murder, it makes a mockery of an impartial judiciary, and effectively makes itself a one-sided political body, and its authority no longer merits respect or compliance.

The EU itself, another unelected body, claims the power to levy huge fines on non-EU companies if they fail to follow its directives that limit freedom of speech. Again, we are looking at overreach, using laws to constrain the activities and legal systems of other countries.

In the UK, Ofcom attempts to limit the right of Americans in the US to exercise their First Amendment rights to free speech. It is yet another example of judicial overreach. In many places, it seems, activists who lose in the polls try to win in the courts instead. We’ll be looking at ways to limit that kind of activity. In some cases, it will simply involve withdrawing from the jurisdiction of such bodies. In others, it will involve Acts of Parliament that limit judicial powers. Watch this space.

Madsen Pirie