Aanother week, another enemy. The judiciary, whose statements have been described as “out of touch” with the socially conservative values of Brexiters, is at the center of ministerial concerns. In response, the ministers are proposing to change the rules that would place certain government decisions beyond the reach of the courts. It would be a step backwards. It signals a passage to avoid judicial review by law in any area the government wants. If passed, it will mean the government can insert ‘disclaimers’ that make its promises meaningless. For example, activists who believe that the legal spending of 0.7% of national income on aid could be enforced by the courts might find the government able to evade this commitment through such a device. The Lord Chancellor, Robert Buckland, is defending this extension of power following the recommendations of an independent panel led by former justice minister Lord Faulks. Yet, even if it did not believe that major reforms were necessary, the government clearly does.
The judges are not hardcore cheerleaders for a political faction. The principle of the rule of law, recognized by law, requires that all public bodies comply with the law, and that recourse to the courts is possible when they do not. Judicial review allows this to happen and has forced the government to act in important areas such as privacy, well-being and the environment. The government believes that the executive should either be exempt from this principle or not be bound by unsympathetic court verdicts. Ministers cloaked their power grab in a baseless argument that the Supreme Court failed to keep out of the political arena. Brexiters claimed a ‘constitutional coup’ when judges declared Boris Johnson’s attempt to suspend Parliament ‘unlawful, void and of no effect’ in 2019.
To regain control, the government has also floated the idea of depriving the Court of its name and increasing the ministerial power of appointment. This, rightly, drew a strong rebuke from the presiding judge, Lord Reed. He told the House of Lords constitution committee on Thursday that such changes “would be widely seen as an act of spite… The idea which seems to underlie this proposal – that to call a tribunal a ‘supreme court’ entails his behavior as the American one – is simply idiotic. The reason for the politicization of the United States Supreme Court is that its members are politically appointed. The justices of the Supreme Court of the United Kingdom are not”.
The value of an independent judiciary should be clear, as should the ill effects of an ongoing war of words between two pillars of Britain’s constitutional order. The UK constitution may not be written, but the relationship between government and judges is no mystery. The courts respect the actions of the executive within the bounds of the law and the executive will respect all decisions of the courts as to where those boundaries are drawn. Basically, it is the legislative authority of parliament that sets the law.
The authoritarian streak in the Commons, however, has a shaky understanding of the separation of powers and is willing to drop unwelcome judgment as evidence that the bench failed to accurately read ministerial intentions. This sentiment is not confined to the wilder fringes of the Conservative party; former Labor Home Secretary Jack Straw backed political tribunal appointments. The dead horse being whipped here is that the judges are out of step with public opinion.
Public law has become a foundation of modern British democracy. The courts, voters understand, are often all that can check the abuse of executive power. It is obvious that our political system is not infallible, producing badly drafted laws from unimpressive political decisions. Ministers are trying to turn things around: in opinion polls, six in seven respondents say they trust judges, while only one in six supports anyone in government. Judicial review is an invaluable remedy for deficiencies in government policy-making. What needs to be fixed is a policy that does not see this as the problem.