4 August 2021

Why the best response to an over-active judiciary is an energetic government

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Has the Government lost its stomach for driving through reform? As rumours swirl that ministers are preparing to U-turn on planning reform, it’s a fair question.

Some pessimists are taking their cue from the Judicial Review (JR) Bill, which was unveiled a couple of weeks ago and aims to restrict the role that the courts can play in politics. It turned out to be far from the head-on assault some were expecting, and one legal commentator went so far as to call it “a mouse”.

This displeased partisans on both sides. Champions of the political constitution argued that the Government was settling for a temporary improvement in judicial conduct under the Supreme Court presidency of Lord Reed. Advocates of judicial power, by contrast, argued that Reed had betrayed Lady Hale’s blessed legacy

Both sides are right to an extent. It is certainly true that the Supreme Court has struck a humbler tone under Reed, and that this is very likely a response to a majority government signalling that it is prepared to stand its ground. (The fact that rulings can vary in response to changes in political conditions surely scotches the myth that judges impartially ‘discover’ the law.) And ministers do seem to have taken their cue from this more amicable tone and not proposed as red-blooded a bill as they might.

Critics of this approach are right that it would be unwise to slack off from the hard work of judicial reform just because the Supreme Court has temporarily rediscovered a greater sense of constitutional propriety, especially if that is a product of the strength of the present government. By the time a future court is squaring off against a future, weaker government, it will be too late to enact the necessary reforms.

However, Whitehall sources suggest that those expecting the battle to be won via the JR Bill misunderstand the nature of the problem.

Simply put, primary legislation is a necessary but not sufficient measure. This is because it only works as intended if the judiciary choose to play ball – and the entire problem we’re trying to solve is judges wilfully misinterpreting legislation or their power over it. If left on the field by itself, there is nothing to stop future judges doing to a Judicial Review Act what they have done to so many other laws.

The only real solution is to effect a deeper change in the relationship between Parliament and the courts, and in judicial culture. Unless you can persuade the existing judges of the merits of being less powerful (and good luck with that) there are only really two means of doing that: judicial appointments, and an active approach to correcting bad judgments.

Reform of appointments, such as introducing American-style confirmation hearings, is controversial and may do more harm than good. But staying on top of adverse judgments would be much easier within our constitutional framework, and well worth doing.

Here’s why. The basis of the case for reforming judicial review rests on a corpus of controversial judgments. The most comprehensive source of these is the ‘Fifty Problematic Cases’ identified by Policy Exchange’s Judicial Power Project, but it should certainly be updated to include later judgments including R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) and, of course, Miller II.

To date, Parliament has tried to correct adverse judgments only by passing subsequent legislation and hoping the courts take the hint. For example, when the judges overturned an ‘ouster clause’ – a provision excluding something from judicial review – in Anisminic Ltd v Foreign Compensation Commission, the ruling was allowed to stand. Instead, a later government tried to introduce another ouster clause in another bill… which was overturned in the case of R (Privacy International) v Investigatory Powers Tribunal.

Now the Government is trying to win this battle by the traditional route. The Fixed-term Parliaments Act 2011 (Repeal) Bill, which I have written about previously, contains a very robust ouster clause. But they are also considering a different approach. This is from the official response to the consultation on the JR Bill (s. 55):

“The Government intends to carry out an internal follow-up exercise to identify and review (with a view to potentially updating where necessary) the other ouster clauses currently on the statute book, including the ouster clause in Privacy International.”

A more active approach to updating the law would make it much harder for adverse judgments to get bedded in as precedents. But it is still trying to deal with the problem in the abstract. An even more muscular approach, which is being bandied around by some in government, would be to legislate specifically against individual judgments.

Take an obvious example such as R (Evans) v Attorney General (2015). This is the famous ‘black spider letters’ case, wherein the Supreme Court basically re-wrote the Freedom of Information Act to strip out the power to prevent the publication of information that Parliament had explicitly conferred upon the Attorney General.

Rather than simply re-legislating for the powers and hoping Lord Reed looks kindly on it, Parliament could, and should, simply legislate to the effect that the judgment in Evans was wrong. This would not only revive the power and give proper effect to Parliament’s will, but strike the adverse ruling from precedent and give future judges no ambiguity to exploit.

After trialling this approach on a test case such as Evans, the Government could then scale it up. An omnibus Bill of Correction could clarify Parliament’s intentions across a range of problematic rulings. Ministers could then make such a bill a regular part of the legislative timetable, perhaps bringing forward a new one every session to make sure the legislature is always giving the judges adequate guidance as to its intent.

The only lasting solution to the expanding role of the judiciary in our political system is a more energetic approach from the legislature and executive. Change the culture and habits of our legislators, and the culture and habits of the judges will follow.

Such an approach will doubtless outrage the true believers in judicial supremacy. But there are scant grounds for objection from any judge who accepts, as the overwhelming majority do, that Parliament is the sovereign apex of our constitution. The courts may rule on what the law is. On the question of what it ought to be, their mandate is thin as air. 

As Lady Hale herself acknowledged, in her Dame Frances Patterson Memorial Lecture of 2019: “If Parliament does not like what the courts have decided, in this or any other context, it can always overturn it.” It’s time to make a habit of doing just that.

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Henry Hill is News Editor of ConservativeHome.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.