The new normal of untraceable power
From legitimacy to manageability — and why that matters beyond one case
This is the final article in a trilogy examining what happens when a person challenges the existence of the court said to have convicted them, and asks for proof of authority to enforce criminal penalties when no identifiable tribunal or judge stands clearly attributable and accountable.
The first article treated a High Court refusal order as a self-description of the administrative justice system, drawing out the implied doctrines by which jurisdictional challenges are reframed, displaced, and closed.
The second article examined that reasoning doctrinally, explaining why it fails a basic rule-of-law test in this case.
This final article steps back from the particulars of the order to ask a broader question: what follows if this mode of reasoning is generalised?
If courts routinely refuse to determine who exercised jurisdiction, and on what basis, what does that mean for democratic legitimacy, supervisory review, and the idea that coercive power is exercised under law rather than by assumption?
What is at issue is not one motoring case, but the conditions under which authority can still be said to be accountable at all.
C1. The problem is class-level, not case-specific
The refusal order examined in the previous articles does not merely dispose of one claim. Its reasoning licences a method that applies to a class of cases.
Nothing in the order turns on the particular facts of my motoring conviction. The reasoning is structural. It applies wherever enforcement proceeds without a demonstrable judicial act, and where authority is assumed rather than evidenced once enforcement has begun. If the state need not produce proof of authority in one such case, there is no principled reason why it must do so in others.
If one person can be convicted without any identified court or judicial act, so can anyone.
The consequence is multiplication, not containment, of the defect. The order authorises a way of handling jurisdictional challenges that can be repeated across summary justice and routine enforcement. It quietly normalises not only unattributable acts of coercion, but also a mode of closure that can be reproduced without embarrassment.
What is at issue, therefore, is not an isolated refusal, but a method of protecting unaccountable power capable of general application.
C2. Attribution collapse dissolves the boundary between lawful and asserted power
Attribution is the point at which abstract law becomes coercive power. It is where authority attaches to a specific act, by a specific body, at a specific time. That junction is constitutionally load-bearing; when it fails, the collapse is not merely personal.
Law governs through acts, not atmospheres. Without attribution, power cannot be traced, contested, reviewed, or held accountable. When the existence of authority is treated as ambient—flowing from system operation rather than from identifiable judicial acts—the distinction between lawful authority and asserted authority collapses.
In that condition, enforcement proceeds not on demonstrated legality, but on assertion alone.
This failure does not occur at the margins of the legal system. It occurs precisely where the rule of law is supposed to do its real work: at the moment when coercive power is applied to an individual.
C3. A “no-forum zone” is a constitutional red line
A system that tolerates coercion without any forum willing or able to adjudicate its legality crosses a constitutional threshold.
In theory, multiple routes exist. Criminal appeals (via Crown Court) presuppose valid convictions. Appeals by case stated (via High Court) presuppose appealable acts. Judicial review is declined because other remedies exist “in principle.” But when each route presupposes the very authority that is in dispute, the combined effect is that the legality of enforcement itself is never adjudicated.
What emerges is a no-forum zone: a space in which power is exercised, penalties are enforced, and yet no court accepts responsibility for determining whether the authority to do so exists.
Power without a forum is incompatible with constitutional governance. A refusal to supervise such matters fractures the relationship between citizen and state.
C4. Procedural closure is substituted for legitimacy
The refusal order marks a shift from adjudication oriented toward legitimacy to a mode of judicial management oriented toward procedural closure, where the aim is not to resolve legality but to terminate inquiry.
Procedural doctrines are used to end questions rather than answer them. Closure is achieved without resolution of the core legality issue. Procedural finality is treated as a sufficient substitute for justification, and legitimacy is assumed to follow from operability.
Over time, it becomes normalised: closure is treated as success, and the absence of adjudication becomes unremarkable.
This substitution is quiet rather than explicit — and dangerous in a democracy.
C5. Primary rule-of-law values are sacrificed to secondary system values
The reasoning reveals an implicit re-ordering of values.
Primary rule-of-law values—attribution, record, traceability, contestability—are displaced. In their place, secondary system values are elevated: efficiency, finality, administrative stability, enforcement momentum.
This inversion is not stated, but it is consistent. Where these values conflict, continuity wins. Demonstrability loses. Over time, this re-ordering reshapes what legality comes to mean in practice.
The hierarchy of the rule of law is reversed — fatal to constitutional governance.
C6. Candour failure externalises costs onto the individual
Where the state controls the records, silence is power.
The refusal order tolerates non-production of the authorising act. Uncertainty is placed entirely on the individual. The absence of evidence is treated as neutral rather than adverse to the enforcing authority.
The cost of institutional opacity is externalised onto the person subject to enforcement. Candour ceases to function as a constitutional equaliser. Process may remain formally open, but it becomes substantively one-sided.
The result is that truth no longer disciplines power; power proceeds without being required to account for itself.
C7. Judicial review is reduced from safeguard to managerial discretion
Judicial review is constitutionally significant because it guarantees a forum in which legality can be tested when other routes fail.
The reasoning in the refusal order demotes that function. Judicial review becomes a matter of discretionary management rather than a safeguard. Foundational legality questions are structurally excluded when they are inconvenient.
This creates moral hazard. If authority need not be demonstrated, institutional incentives tilt toward laxity rather than rigour. The system bears little risk for evidential failure; the individual bears the consequences.
C8. Quality failures compound legitimacy erosion
Reasoning quality by the judiciary is not cosmetic. It is a condition of legitimacy.
Mischaracterisation hardens when it is not corrected. Non-engagement becomes invisible. Weak reasoning sets behavioural templates for future cases, especially where it is issued by higher courts and remains unchallenged.
Independent quality reviews converge on the same concerns. Low-quality reasoning does not merely fail in the instant case; it scales harm by normalising defective methods.
C9. The order survives, but the accountability analysis endures
Procedural closure in this one case — by refusal of permission — does not end the constitutional problem.
The order now exists as an attributable institutional record. Its reasoning can be relied upon, cited, and repeated by others. Even successful future litigation would not erase the method the order authorises, or prevent its repetition elsewhere.
Legitimacy questions outlive cases. This order leaves unresolved tensions with basic constitutional principles, and those tensions should not be ignored.
Conclusion: what is ultimately at stake
Taken together, the refusal order represents:
a class-level erosion of attribution
— the foundation of accountability has been quietly dismantled, so no one has to say who actually decided anything.a tolerance of coercion without forum
— power is exercised with no court left that will even hear the question of whether it was lawful in the first place.a quiet reversal of the rule-of-law value hierarchy
— keeping the system running smoothly now matters more than proving the punishment is lawful.a demotion of supervisory review to discretion
— the right to an effective remedy has become optional, something a judge can withhold without explanation.a shift from legitimacy to manageability as the organising principle of adjudication
— justification is no longer required; what matters is that the machine keeps turning.
This is not about one claimant, one order, or one court.
It is about whether the system still insists on demonstrable authority at the moment it coerces — and whether a state that refuses that test can still honestly claim to govern by law.