Judicial Impotence

So here we are, watching the judiciary – in the US and elsewhere – issuing rulings like polite suggestions while populist strongmen simply shrug and carry on. Trump, that human stress test for democracy, has shown that if you have no shame and enough followers who’d defend you for punching the moon, you can ignore courts with impunity. And it raises the uncomfortable truth: the judiciary, for all its wigs and rituals, has no teeth.

Britain isn’t in the grip of a strongman – not yet – but the threat is real. Farage looms on the horizon, and the groundwork has long been laid. He’s floated withdrawing from the European Court of Human Rights – ostensibly to speed up deportations – but that’s a con trick. Deporting someone still requires international cooperation, which relies on agreements, diplomacy, and mutual legal frameworks. Scrapping the ECHR won’t help – but it will strip away yet another safeguard against state overreach. It’s not about immigration – it’s about unchecked power. 

In the British system, the courts rely entirely on the executive to enforce their rulings. If a minister or Prime Minister simply says "no thanks", the court can do precious little. There's no enforcement arm, no bailiffs in ermine. It’s all built on the gentlemanly assumption that everyone will play fair. But what happens when they don’t?

This isn’t just an American problem. If a future British government took a populist swerve and decided to ride roughshod over the courts – scrap judicial review, ignore inconvenient rulings, or pack the benches with party loyalists – there’s nothing in our uncodified mess of a constitution to stop them. Because, let’s face it, our system isn’t designed to withstand malice. It assumes good chaps in suits doing the right thing. That’s not a safeguard – it’s a prayer.

The obvious solution – giving the judiciary its own enforcement powers – is a poison chalice. If judges start commanding their own force, issuing arrest warrants and banging people up without executive involvement, we’d quickly slide into a judicial autocracy. Judges are unelected for a reason: they’re meant to interpret the law, not wield it like a club. Giving them their own police turns them from umpires into players – and you can forget public trust after that.

So we’re stuck. The executive can ignore the judiciary. The judiciary can’t force compliance. And the legislature – particularly in Britain – is sovereign and virtually unaccountable between elections. There’s no hard brake on overreach. The only thing that stops it is public outrage – and that’s easily manipulated with the right newspaper front pages and a Facebook ad budget.

Could the monarch intervene? In theory, yes. In practice, absolutely not. The idea of the King stepping in to block a government breaching constitutional norms sounds comforting – until you realise it would bring the monarchy crashing down. The Royal Assent hasn’t been withheld since 1708 for good reason. The Crown survives by not being used. It's the emergency brake you never pull because the car might explode.

Even if the courts somehow held the line, there’s a quieter rot underway – the slow political capture of institutions. Watchdogs like the Electoral Commission, Ofcom, and civil service ethics advisers are stuffed with loyalists or simply left vacant. When watchdogs are turned into lapdogs – appointed not for competence, but compliance – even the illusion of accountability collapses. A government doesn't need to sack the judges if it can steadily choke off every institution that checks its power.

Then there’s the voting system. First-past-the-post delivers parliamentary majorities to parties with a minority of the vote. One party can govern unchallenged with just 40% public support. That’s not democracy – it’s rule by a well-placed minority.

And looming over it all is data – surveillance powers, algorithmic propaganda, and targeted disinformation. Combine a neutered judiciary, a compliant media, and a state with full access to your digital life, and you’ve built yourself an elective autocracy with all the proper paperwork. Judicial rulings won’t matter if no one hears about them – or if a thousand bots are primed to convince you the courts are “enemies of the people.”

So what’s the answer? Not a tweak. Not a politely worded reform. A root-and-branch rethink. Here’s a starting point:

• A codified constitution, with enforceable limits on government power and entrenched civil rights.
• A Constitutional Court with authority to strike down laws and overreach. 
• An independent enforcement body to ensure judicial rulings can’t be ignored. 
• A reformed upper house with no ex-MPs, no party donors, no political appointees – just citizens, experts, and constitutional guardians. 
• Automatic judicial review of all emergency legislation. 
• Sunset clauses on sweeping powers. 
• Recall powers for MPs and Cabinet ministers who breach the constitution. 
• Sending FPTP to the dustbin and replacing it with PR.
• Real protection for civil servants, prosecutors and judges against political interference. 
• A ban on disinformation in public office, with criminal sanctions for knowing lies. 
• And yes, civic education – because the public can’t defend what it doesn’t understand.

If you’re relying on tradition to save democracy, you’ve already lost. If your last line of defence is an unelected monarch with a theoretical veto, you’re living in a fairy tale. It’s time to stop pretending. Our institutions aren't sacred – they’re broken. And they won’t be fixed with deference and nostalgia. They need rebuilding from the ground up – before someone truly ruthless comes along and proves just how easy it is to bring the whole thing crashing down.