Monday, December 06, 2021
One law for the Tories, another for us
As if it were not bad enough that Boris Johnson's government think they can willfully disregard rules imposed on the rest of us for reasons of public safety, it appears now that they also want to place themselves above the rule of law.
The Times reports that Downing Street is to begin a fresh war with judges over a plan to let ministers throw out any legal rulings they do not like, effectively curtailing the power of the courts to use judicial review to overrule decisions by ministers.br>
The paper says that The prime minister has ordered Dominic Raab, the justice secretary, to toughen plans to reform judges’ powers to rule on the legality of ministerial decisions:
An option drawn up by Raab and Suella Braverman, the attorney-general, that is liked by No 10 is for MPs to pass an annual “Interpretation Bill” to strike out findings from judicial reviews with which the government does not agree.
Whitehall sources argue that the bills would reinforce the constitutional principle that parliament is sovereign over the unelected judiciary. The move has provoked uproar within the legal establishment, and Johnson was accused of trying to use his Commons majority to halt legitimate challenges. One senior QC said that the prime minister was secretly seeking “a more compliant judiciary”.
The action on judicial review is the latest assault the government is planning on the legal framework. Raab disclosed another yesterday when he told Times Radio that he wanted to overhaul the Human Rights Act to “correct” the balance between freedom of speech and privacy. He was speaking after The Mail on Sunday lost its appeal in the privacy case brought by the Duchess of Sussex over the publication of a letter she had sent her father.
Pledging to prioritise free speech over privacy, Raab said: “I think the drift towards continental-style privacy laws, innovated in the courtroom, not by elected lawmakers in the House of Commons, is something that we can and should correct.”
Johnson’s allies say that he is unhappy with the Judicial Review and Courts Bill, going through parliament. The legislation stepped back from radical reforms once threatened by No 10 and focused instead on subtle remedies, such as suspended judgments to give ministers time to tackle problems.
It “doesn’t go far enough” for Johnson, one ally said, adding that the prime minister’s proposals had led him to clash openly in cabinet with Robert Buckland, who was sacked as justice secretary in September. It was claimed that this row was behind the surprise dismissal of the popular Buckland.
Johnson’s wish to curtail judicial review arises from two cases brought by the anti-Brexit activist Gina Miller, his allies say. In the first, in 2016, judges ruled that Theresa May, then prime minister, had been wrong to trigger Article 50 to leave the EU without a vote in parliament first. In the second, in 2019, the Supreme Court ruled that Johnson’s decision to prorogue parliament for five weeks had been unlawful.
Raab’s changes will come too late to be included in the Judicial Review and Courts Bill, which is already at report stage in the Commons. Sources close to Raab said that they would be included in legislation next year.
Braverman gave a significant hint about the measures in a speech last month to the Public Law Project Conference. “What we have seen is a huge increase in political litigation — that is to say, litigation seeking to use the court system, and judicial review, to achieve political ends,” she said. “If we keep asking judges to answer inherently political questions, we are ignoring the single most important decision-maker in our system: the British people.”
She also attacked the Supreme Court for its judgment on prorogation, saying that the case was “a stark warning of how far jurisprudence has moved”.
The plan for an Interpretation Bill was met with incredulity among lawyers. Edward Garnier QC, solicitor-general in David Cameron’s administration, said: “This government seems to forget that like all of us it, too, is subject to the law. And I should have thought that No 10 would have learnt the lesson of the prorogation battle, when the Supreme Court reminded the government that this is a country under the rule of law and not under a dictatorship.”
Garnier added: “If the prime minister does not like a lawful ruling of the court that has been a legitimate interpretation of statute passed by parliament, it is open to the government to attempt to change the law by an act of parliament. But it is not for some here-today- gone-tomorrow minister to change permanently existing statute law by ministerial fiat.”
David Gauke, a former lord chancellor and justice secretary, said: “If the government is contemplating getting parliament to retrospectively change the law as it has been interpreted by judges, then that would be an extremely worrying step and a departure from the rule of law and the traditions of this country.”
This attempt to bully the judiciary into becoming more compliant, is yet another step towards the Hungarian-style elected dictatorship, Johnson seems intent on creating.
The Times reports that Downing Street is to begin a fresh war with judges over a plan to let ministers throw out any legal rulings they do not like, effectively curtailing the power of the courts to use judicial review to overrule decisions by ministers.br>
The paper says that The prime minister has ordered Dominic Raab, the justice secretary, to toughen plans to reform judges’ powers to rule on the legality of ministerial decisions:
An option drawn up by Raab and Suella Braverman, the attorney-general, that is liked by No 10 is for MPs to pass an annual “Interpretation Bill” to strike out findings from judicial reviews with which the government does not agree.
Whitehall sources argue that the bills would reinforce the constitutional principle that parliament is sovereign over the unelected judiciary. The move has provoked uproar within the legal establishment, and Johnson was accused of trying to use his Commons majority to halt legitimate challenges. One senior QC said that the prime minister was secretly seeking “a more compliant judiciary”.
The action on judicial review is the latest assault the government is planning on the legal framework. Raab disclosed another yesterday when he told Times Radio that he wanted to overhaul the Human Rights Act to “correct” the balance between freedom of speech and privacy. He was speaking after The Mail on Sunday lost its appeal in the privacy case brought by the Duchess of Sussex over the publication of a letter she had sent her father.
Pledging to prioritise free speech over privacy, Raab said: “I think the drift towards continental-style privacy laws, innovated in the courtroom, not by elected lawmakers in the House of Commons, is something that we can and should correct.”
Johnson’s allies say that he is unhappy with the Judicial Review and Courts Bill, going through parliament. The legislation stepped back from radical reforms once threatened by No 10 and focused instead on subtle remedies, such as suspended judgments to give ministers time to tackle problems.
It “doesn’t go far enough” for Johnson, one ally said, adding that the prime minister’s proposals had led him to clash openly in cabinet with Robert Buckland, who was sacked as justice secretary in September. It was claimed that this row was behind the surprise dismissal of the popular Buckland.
Johnson’s wish to curtail judicial review arises from two cases brought by the anti-Brexit activist Gina Miller, his allies say. In the first, in 2016, judges ruled that Theresa May, then prime minister, had been wrong to trigger Article 50 to leave the EU without a vote in parliament first. In the second, in 2019, the Supreme Court ruled that Johnson’s decision to prorogue parliament for five weeks had been unlawful.
Raab’s changes will come too late to be included in the Judicial Review and Courts Bill, which is already at report stage in the Commons. Sources close to Raab said that they would be included in legislation next year.
Braverman gave a significant hint about the measures in a speech last month to the Public Law Project Conference. “What we have seen is a huge increase in political litigation — that is to say, litigation seeking to use the court system, and judicial review, to achieve political ends,” she said. “If we keep asking judges to answer inherently political questions, we are ignoring the single most important decision-maker in our system: the British people.”
She also attacked the Supreme Court for its judgment on prorogation, saying that the case was “a stark warning of how far jurisprudence has moved”.
The plan for an Interpretation Bill was met with incredulity among lawyers. Edward Garnier QC, solicitor-general in David Cameron’s administration, said: “This government seems to forget that like all of us it, too, is subject to the law. And I should have thought that No 10 would have learnt the lesson of the prorogation battle, when the Supreme Court reminded the government that this is a country under the rule of law and not under a dictatorship.”
Garnier added: “If the prime minister does not like a lawful ruling of the court that has been a legitimate interpretation of statute passed by parliament, it is open to the government to attempt to change the law by an act of parliament. But it is not for some here-today- gone-tomorrow minister to change permanently existing statute law by ministerial fiat.”
David Gauke, a former lord chancellor and justice secretary, said: “If the government is contemplating getting parliament to retrospectively change the law as it has been interpreted by judges, then that would be an extremely worrying step and a departure from the rule of law and the traditions of this country.”
This attempt to bully the judiciary into becoming more compliant, is yet another step towards the Hungarian-style elected dictatorship, Johnson seems intent on creating.
