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Government v judges
an appeals process: what sort of appeal court is controlled by the governing political party? Other parties said that their mps would refuse to sit on it.
As if to acknowledge these shortcomings, the government appeared to back down as we went to press. It would, Mr ReesMogg said, bring about reform on a “crossparty” basis and break the link between Mr Paterson’s case and future cases.
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Today’s system is itself the product of the cashforquestions imbroglio in 1994 and the parliamentary expenses scandal of 2009. Yet the government is now dismantling it to wish away another moneyrelated scandal. Almost a quarterof the 59 backbenchers who signed Dame Andrea’s amendment had previously been found in breach of parliamentary standards. David Cameron, the prime minister from 2010 to 2016, was recently hauled over the coals for lobbying on behalf of Greensill Capital, a financial company that later failed. Yet the government has now protected yet another Tory mp who used his office to lobby.
The Paterson affair looks likely to further undermine public trust in politicians in general and Tories in particular. How will rich rewards for lobbying go down with the Conservative Party’s new workingclass voters in northern constituencies? That mps voted for the amendment by just 250 to 232, despite a government majority of 80 and a threeline whip, suggests many Tory mps are uneasy. Mr ReesMogg closed his speech by saying that “sometimes to do the right thing, one has to accept a degree of opprobrium”. The government has just earned a great deal of opprobrium by doing the wrong thing. n
Judicial independence Government v judges
Tory claims that judges intrude too far into politics are wrong-headed
Ministers never like seeing their decisions overturned. But in a rulesto stop the powers of Parliament being whittled away by what he characterises as based system, they must usually live with it. Yet Britain’s government has concluded that such reversals happen too often—and wants to change the rules to curb one purported cause, an obstructive judiciary. This raises constitutional concerns.
Exhibit one is a bill now going through Parliament that seeks to curb judicial reviews, in which senior judges consider the legality or otherwise of a public body’s actions. They have certainly become more common in recent decades. Ministers from both parties have at times sought to limit their scope or even stop them altogether, partly to save money. The draft bill is actually quite mild. But it includes an ouster clause that would prevent judicial review of controversial immigration cases.
David Davis, a former Conservative minister, opposes the bill for this reason. He fears that the ouster clause may become a model for obstructing review of employmenttribunal or socialsecurity decisions. Yet some prefer to broaden the bill instead. Richard Ekins, an Oxford academic who runs the judicialpower project at Policy Exchange, a thinktank, says excessive judicial review has led unaccountable judges into areas that should be decided by politicians accountable to Parliament.
Some ministers agree. Dominic Raab, the lord chancellor and justice secretary, has criticised some judicialreview decisions, notably relating to Brexit. He wishes “judicial legislation”. To this end, he wants an unspecified mechanism to allow Parliament swiftly to “correct” what ministers deem to be wrong judgments. Mark Elliott, a Cambridge academic specialising in public law, finds this idea deeply troubling, especially if it is done through secondary legislation or applied retrospectively. Yet it is favoured by Suella Braverman, the attorneygeneral. In a recent speech she said judicial review was being used “as a political tool by those who have already lost the arguments”, and that litigation must not be the continuation of politics by other means. She took aim at court rulings in two Brexit cases: one that the process for leaving the eu could only be started through primary legislation, the other nullifying a prorogation of Parliament.
It seems bizarre that law officers normally expected to defend the judiciary should attack it instead. It is also misleading of critics to claim that the judges in these two cases were trying to frustrate the Brexit referendum (the Daily Mail headlined its report on one “Enemies of the People”). In fact the judgments sought to bolster the role of Parliament, supposedly a big goal of Brexiteers.
A similar confusion besets another of Mr Raab’s targets: foreign judges. He wants not just to end any role for the European Court of Justice in Luxembourg, but to overhaul the Human Rights Act, which obliges domestic judges to take account of rulings by the separate European Court of Human Rights in Strasbourg. But the echr’s role derives from the European Convention on Human Rights, to which Britain is a signatory (indeed, British lawyers wrote most of the treaty). To withdraw would make Britain one of only two significant European countries outside its jurisdiction (the other is Belarus).
David Gauke, a former Tory lord chancellor, points out that gutting the Human Rights Act could, perversely, see more cases going direct to Strasbourg. It would also send an unhelpful signal about the importance of international law. Britain has long been a firm supporter of the concept. Any reversal would be especially unfortunate at a time when countries such as Poland and Hungary are under attack for undermining judicial independence.
This antijudicial agenda seems at odds with the separation of powers. Britain has never been purist about this (Lord Mackay, another former Tory lord chancellor, used to say he was its antithesis, as a judge serving in the cabinet and also a member of the legislature). But the British constitution broadly accepts that the legislature, executive and judiciary should be separate.
If there is a problem, it is surely an overweening executive. Parliamentary scrutiny of government can be feeble. A good example, as it happens, was the Brexit trade deal, which saw a treaty of over 1,000 pages rushed through with minimal debate (Tory mps have only just woken up to the implications for Northern Ireland of measures they enthusiastically voted for). Undermining international law and intimidating judges will hardly improve checks on the executive. Some 45 years ago Lord Hailsham, yet another former Tory lord chancellor, talked of the risks of “elective dictatorship”. He had in mind a Labour government, but his words may apply more to a Conservative one. n
