The Threat To Democracy That The Supreme Court Represents

Added: 2026-05-25

[00:00:00]at Roger Partridge, and he joins us now.

[00:00:02]Roger, good to have you on the show again. Thank you so much for joining us.

[00:00:06]Good morning, Michael.

[00:00:08]Listen, you wrote on this last week, well, actually on Friday, I think, an affront to democracy.

[00:00:15]In which you say that the response from climate change activists, Greenpeace, and the Labour Party, just about everybody was that the intervention of the government to amend the climate change response act to stop a case like this uh they called it an affront to democracy.

[00:00:32]You're arguing that's completely the wrong end of the stick.

[00:00:35]Can you take us through it, please?

[00:00:38]Well, in the in the hierarchy in our constitutional arrangements, Parliament sits on top. Mhm. As you know, Michael, there are three branches of government.

[00:00:49]The executive administers the law, Parliament makes the law, and the court interprets it.

[00:00:55]And in that in that those three branches of government, Parliament is supreme.

[00:01:01]Uh and it it's made up of the elected representatives from elected by voters.

[00:01:08]And so when Parliament acts, it's not an affront to democracy. That's democracy in action. That's voters' representatives deciding on what the law should be.

[00:01:20]And there are certain elites within society and within the legal profession that don't much like the idea of democracy. And so it's an affront to their idea that unelected elites on our courts should decide big social policy questions rather than our representatives.

[00:01:40]So that's why Mike Smith and others had it the wrong way around. It's democracy in action. It's the reverse of an affront to democracy.

[00:01:48]Yeah, in a funny sort of way, I don't blame Mike Smith. He's a climate activist. He's been an activist, and if you like, uh, outsider for a long time attacking the system.

[00:02:00]Um, that's his stick. That's who he is.

[00:02:02]That's his philosophy. He inhabits somewhere way over the left, but at least he's consistent.

[00:02:09]Um, he goes to the High Court and then he goes to the Court of Appeal and they just say, "You haven't got a sh- chance, mate." and throw it out.

[00:02:17]Have you worked out why the Supreme Court decided that that wasn't the real way in which the law should be interpreted?

[00:02:27]Well, just before answering that, it's worth pausing for a minute on what the Court of Appeal said and I'll read out a key paragraph from the Court of Appeal's decision. Sure. A- and it said, "The magnitude of the crisis, which is climate change, simply cannot be appropriately or adequately addressed by common law court claims pursued through the courts. It's quintessentially a matter that calls for a sophisticated regulatory response at a national level supported by international coordination."

[00:03:00]So, it just it said it's a big issue. It requires international treaties. It requires a regulatory regime. It's not something for the common law of tort, so civil claims between parties alleging damage.

[00:03:16]And it unanimously struck the claim out.

[00:03:18]Mhm. They just it's just it's not a field the court should be in. This is a big social and economic policy area. It requires multiple parties including international treaties. The courts should leave it well alone.

[00:03:32]And you would have thought, um, that that's where it would have ended. A unanimous decision of the Court of Appeal striking the claim out as untenable.

[00:03:43]So, then the Court of Appeal the Supreme Court weighs in. Smith makes an application for leave to appeal to the Supreme Court.

[00:03:51]The Supreme Court granted leave. It doesn't usually. It's only rare cases get to go to the Supreme Court.

[00:03:58]So, obviously, the Supreme Court judges like the idea of the courts being involved in what in what is one of the biggest political issues of our age.

[00:04:11]And so, I think you view it as the courts the Supreme Court uh wanting to have a say in a highly politicized um issue uh and not to leave it to uh to Parliament, to democratically elected representatives of voters.

[00:04:33]Well, I listen, I don't think you're going to get too much disagreement here.

[00:04:37]And my understanding was that when I went to law school, and unfortunately, I've been twice, uh in the 1970s and then again at the start of the century.

[00:04:46]Um the >> get sent back?

[00:04:49]>> [laughter] >> No. For honestly, well, no, I went to do law, discovered that I didn't really like it, and went and did history and and politics instead. And then the second time I went to do it specifically to do a course on public law.

[00:05:03]Um um which I have to say I thoroughly enjoyed. But, um I'm just Roger trying to think back to even those law schools, they made it quite clear about the distinction that you've just made.

[00:05:17]Who changed that distinction? That the Supreme Court could essentially decide to enter the realm of national politics and international politics in this case.

[00:05:29]Well, I I think probably since the time you and I were both at law schools, our court system, especially the the the most senior court, um has been increasingly has seen itself as a political actor.