Report increases fears government is determined to weaken judicial scrutiny
Boris Johnson is planning to let ministers throw out legal rulings they disagree with, according to a report which has increased fears that the government is determined to weaken judicial scrutiny after a series of defeats in court.
An ally of the prime minister told the Times that the judicial review and courts bill going through parliament “doesn’t go far enough” for the prime minister, who is considering an option, drawn up by the lord chancellor, Dominic Raab, and the attorney general, Suella Braverman, which would enable it to strike out findings from judicial reviews with which the government does not agree.
A judicial review is a court proceeding where a judge examines the lawfulness of an action or a decision of a public body. It looks at the way a decision has been reached, rather than the rights and wrongs of that decision, but some Conservatives have accused judges of overreach.
The government’s complaints date back to two Brexit-related government defeats in the supreme court on whether ministers or parliament had the right to trigger Brexit and the prorogation of parliament. The Conservative election manifesto subsequently pledged to end “abuse” of judicial review.
However, the judicial review bill, while placing some new restrictions on use of the process, including in immigration cases, did not go as far as some feared. Many saw this as a result of the then justice secretary, Robert Buckland, resisting further curbs on judicial powers. Buckland was sacked and replaced by Raab in September’s cabinet reshuffle.
The Times reports that Johnson is unhappy with the bill but as the proposed changes come too late for inclusion in it, they will be included in legislation next year, citing sources close to Raab.
Critics warned that such a move would prevent the government being rightfully held to account when it acted unlawfully.
Stephanie Boyce, the president of the Law Society of England and Wales, said: “If the government wants to avoid losing court cases, it should ensure decisions are made within the law of the land.
“This sounds like the government wants to retrofit the law to its bad decisions. Something so vital to the character of our nation and our standing in the world should not be debated via lobby briefing and anonymous ‘Whitehall sources’.”
Joanna Cherry QC, a senior lawyer and SNP MP, tweeted: “So now we know why Robert Buckland got the push for Dominic Raab. Clearly [Buckland’s] approach to judicial review and human rights ‘reform’ was too vanilla. These proposals are an affront to democracy and the rule of law.”
Adam Wagner, a leading human rights lawyer, tweeted: “The fact that a judgment has political ramifications doesn’t mean judges engage in politics. Inevitably, if the govt messes up and acts outside the law, a judgment concluding that will inevitably have political impact. That doesn’t justify messing with separation of powers.”
The government has also faced a number of challenges over its handling of the coronavirus pandemic. In February, a high court judge ruled that the then health secretary, Matt Hancock, acted unlawfully by failing to publish multibillion-pound Covid-19 government contracts within the 30-day period required by law.
Last month, in a speech to the Public Law Project conference, Braverman claimed there had been a “huge increase in political litigation” and said judges should not be asked “to answer inherently political questions”.
At present, the only option if the government is dissatisfied with a judicial decision is to legislate accordingly but the suggestion is that it is determined to give itself greater powers.
Speaking on Times Radio on Sunday, Raab also outlined plans to reform the Human Rights Act to “correct” the balance between freedom of speech and privacy.
In the wake of the Mail on Sunday’s failed appeal over its publication of a letter written by Meghan, the Duchess of Sussex, to her estranged father, Raab said he wanted to rectify “the drift towards continental-style privacy laws, innovated in the courtroom, not by elected lawmakers in the House of Commons”.
The Ministry of Justice and No 10 have both been approached for comment.