If You’re Worried About Political Correctness Going Too Far, then You Had Better Oppose The Threat to Judicial Review and Human Rights

Are you the sort of person who gets annoyed with ‘political correctness’? Are you fed up with ‘woke’ students and minority rights activists seeking to police your thoughts? Exasperated with civil servants attempting to social engineer us all?
Well then you had better get behind the campaign to save judicial review.
Last week Mr Justice Julian Knowles of the Administrative Division of the High Court handed down his judgment in R (Miller) v The College of Policing and another [2020] EWHC 225 (Admin).
This was a ‘judicial review’ case, where a court examines whether a public servant (in this case, the police) acted within the law, according to the powers given to them by parliament. When someone exercising power on behalf of the state goes rogue, exceeds their powers, makes a biased decision or makes a mistake, then a court can step in to correct the error.
Judicial Review is the procedure by which we ensure that the Rule of Law stays paramount. It is administered by the courts to ensure that everything the state does has the democratic backing of parliament. It is an essential component of democracy, because it ensures that democratic laws are actually enforced but never exceeded.
The Miller case concerned a man who posted some derogatory message about transgender people and their rights on social media. Stuff like this:

Just had son on from Oxford. The anti-Jenni Murray crowd were out baying, screaming and spitting at students who went to see Steve Bannon, and barricaded their way, not just to the meeting, but when they attempted to retreat to their rooms. Twats

And this:

“Dear @Twitter Given your rules on dead naming, could you please clarify who won gold at the 1976 Olympic men’s decathlon, please

And this:

“If we asked Holly and Jessica who murdered them, I imagine they wouldn’t say ‘A woman called Nicola’. #IanHuntleyIsAMan”

An activist who spotted these tweets reported them to Humberside Police. In response, a police officer visited Mr Miller at work. The officer warned Mr Miller that although the offensive messages were lawful, if he continued to post messages like this it could result in the matter being ‘escalated.’
Mr Miller considered this intervention by the officer to be an infringement of his right to freedom of expression. Judicial review is the legal mechanism for testing whether this was the case.
Julian Knowles J agreed that the policeman’a visit was an infringement of rights and not something that the police should be doing. The judgment is peppered with literary quotes (from George Orwell and others) emphasising the importance of free speech in a democratic society, even when that speech is offensive to others.
I do not share Mr Miller’s apparent animosity to transgender people. And on this blog I have, on several occasions, defended what others call ‘political correctness’ and ‘woke’ behaviour. Nevertheless, I think that the High Court gave the correct decision. It’s one thing to face social opprobrium for Tweeting something offensive, but quite another for the state to involve itself in such matters. The police should not be visiting someone’s home or work to censure offensive tweets that were directed at no-one in particular. Whether you describe this as ‘political correctness’ or something less derogatory, I think it went ‘too far.’

The threat to judicial review

Meanwhile, Boris Johnson has appointed Suella Braverman as Attorney General in his cabinet reshuffle. Lawyers now worry that this signals that Mr Johnson’s government will ‘go after’ judicial review.
It might be nice to think that this is only intended to discourage cases like the other Miller judicial reviews (where the claimant was Gina Miller, who brought two Brexit related cases to the Supreme Court). But make no mistake – If Ms Braverman and Mr Johnson want to defang the judicial review procedure, it will affect the exercise of state power across the board, including the actions of police officers such as those who encountered Harry Miller, and also the local councils, who are very often criticised for stepping beyond the bounds of their powers.
And of course, the Conservatives will eventually lose power. When they do, a Labour Party led by Rebecca Long-Bailey, (or whoever it may be) will be able to act beyond the rule of law just as easily. When the far left take power and find the courts toothless, whose rights do you think they will abuse first?
Framed properly, this is an issue that should cut across the lines of the ‘culture-war.’ Over the weekend, the directors of many civil liberties groups wrote a letter to the Daily Telegraph stressing the importance of judicial review. It was a laudable initiative, but I do worry it will be perceived as coming from the ‘usual suspects.’ If Mr Johnson and his supporters in parliament are to be persuaded that weakening judicial review is a bad idea, then campaigners need to widen their coalition, to include those groups, demographics and voters that might not instinctively see themselves as allies to the cause.