Another day, another of feeling that democracy is slipping away. The Justice Secretary has written to the Sentencing Council, expressing concern over potential bias in the new guidelines, yet admits she has no authority to compel change. Why? Because real power isn’t with those we elect. Blair began the process of tying future Conservative governments ’hands by shifting power to unelected, unaccountable quangos. The sentencing guidelines controversy asks: who really holds power?
The Sentencing Council was created to ensure consistent sentencing. The SC would claim its guidelines don’t violate equality before the law since they don’t dictate final sentences. Yet, by advising judges to request pre-sentence reports - often a step toward non-custodial sentences - for certain groups, the SC has a hand on the scales. This is clearly going to excite political - i.e. public - disquiet. Yet the SC remains independent despite clumsily lighting a political fire.
Judicial independence is crucial, but it must not create an unaccountable bureaucracy shaping public policy. The SC is not just sentencing one person - something that must be wholly independent of government. They made a decision that affects a whole class of people: sentencing policy.
Democratic legitimacy requires elected representatives to shape policy, yet decision-making is increasingly delegated to unelected, unaccountable bodies.
Another day, another of feeling that democracy is slipping away - Robert Courts KC
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Consider the expansion of quangos and regulatory bodies across government. Quangos like the Environment Agency, Natural England, Ofcom, the independent education bodies and the FCA exert vast influence over policy, often beyond their remit. These bodies have seized more power with little oversight, sidelining Parliament.
When the public demands change, they’re told “nothing can be done” - not due to lack of will, but because power has been outsourced to the unelected. Whilst the left applaud that “the experts are in charge”, this breeds frustration and cynicism among the rest of us, who understand that their representatives are powerless to act on their behalf.
Then there are courts and international agreements. Take immigration, where the public rightly demands action. Policies regarding deportations, asylum claims, and border control are increasingly dictated by those unelected - and often unchangeable - structures, with ministers frequently expressing frustration at their inability to enact policy mandates given to them by the electorate. Legal rulings blocked Rwanda deportations until lawyer-ministers scrapped them.
The Climate Change Committee wields huge influence with little oversight. In theory its role is advisory. But in practice, its recommendations shape government decisions on net-zero policies that affect every aspect of life - from energy bills to transport and farming - because if Government doesn’t meekly follow them, they are merely creating fodder for activist-inspired judicial review. When politicians challenge it, they’re accused of ignoring “the science” - a tactic to shut down debate. So bodies like the CCC operate in a space where their authority is treated as beyond challenge, despite the profoundly political - economic and societal - impacts of their advice. If Parliament exists to make the law, then it must retain the power to scrutinise and amend policies dictated by unelected experts. Otherwise, we are governed by technocracy, not democracy.
Judges must accept Parliament's right to revise law.
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The result? Public anger. People are fed up with a system where they feel that nothing changes no matter how they vote. This erosion of democracy is dangerous. When voters feel ignored, they look for someone - anyone - who promises to shake things up. That’s why we’re seeing political upheaval across the West.
Even those who should know better blur their role. Only a few weeks ago, the Lady Chief Justice became involved in an entirely self-inflicted row with both the Prime Minister and the Leader of the Opposition. Her misunderstanding was that whilst it is improper to impinge on judicial independence to make a ruling, it is not improper to disagree with that ruling and seek to change future similar ones by legislation. That is precisely how democracy works: Parliament exists to review judge-made law and legislate accordingly. Judicial independence must be protected, but judges must avoid activism and accept Parliament’s right to revise law.
The principle at stake here is not about undermining the rule of law or judicial independence - quite the reverse - but about ensuring that elected officials can govern effectively. The solution is restoring oversight and giving elected representatives power to intervene. Greater parliamentary scrutiny, sunset clauses, and clearer accountability could help, but in many cases, these bodies must simply be abolished and their powers returned to elected government.
The sentencing row is just the start. Democracy must mean more than a token trip to the ballot box - it must deliver results. The erosion of elected authority isn’t some academic issue. It goes to the heart of the growing disillusionment with politics, because people feel that nothing ever changes, that politicians do not do as they say. Unless this is changed, with a fundamental rolling back of the quangocracy state, the disillusionment will only deepen, with consequences that go far beyond the current sentencing debate.
