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covid free office

BY Jessica Culnane

Healthcare

Human Rights, Judicial Review, and the State: When Will The Power Grab End?

After years of accusing the judges of overreach, the Government has plans to limit judicial power. Is this a harbinger for drastic judicial reform?

JANUARY 12  2022

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Last month, the UK Government launched a three-month consultation on the new Bill of Rights Act. Despite little public support for overhauling the European Union Convention of Human Rights in favour of a domestic version, the Government have stated that the proposed measures aim to restore Parliament’s role as the ultimate decision-maker on laws impacting the UK population.

Deputy Prime Minister and Secretary of State for Justice, Dominic Raab, said ‘our plans for a Bill of Rights will strengthen typically British rights like freedom of speech and trial by jury while preventing abuses of the system and adding a healthy dose of common sense’.

However, this is not the first move the Government have made to shift the balance of power away from the judiciary and towards the state. The Judicial Review and Courts Bill – a bill introduced by Raab to curtail judicial power – is currently at Report Stage in the House of Commons. If passed, it will be a defining moment in British constitutional and legislative history.

Judicial Review: what is it and how will the bill curb it?

Judicial review is the process of examining the lawfulness of an action or decision implemented by a public body. It is objectively one of the most important upholders of the rule of law. However, some Conservative ministers have accused the judiciary of overreach.

In the past decade, there has been an evident increase in both the number of judicial review cases and the amount of public attention they have received following several high profile cases. A Supreme Court ruling back in 2017 stated the Government required an Act of Parliament before it could withdraw from the European Union – this received widespread criticism among Conservative ministers.

Two years later in 2019 the Supreme Court dramatically announced on live television that the proroguing of Parliament had been unlawful and prevented Parliament from carrying out its role without reasonable justification. The anger the Government held against the judiciary has remained – relatively – latent, only recently manifesting in the form of the Judicial Review and Courts Bill.

The aim of the Bill is to empower Ministers to dictate the terms on which a judicial review is conducted and essentially give them a ‘veto’ (by rejecting quashing orders) over judicial rulings if they aren’t happy with the outcome. This means, for example, if a judicial review deemed a legislation unlawful, inconsistent with existing law, and ruled to have it reversed, a Minister would be able to pull out their ‘get out of court card’ and carry on as usual.

 

Pruning judicial power

The Conservative party have been itching to restrict the extent to which judiciaries can interfere with government legislation – this was made clear in their 2019 Manifesto, where the party stated it planned to end the ‘abuse’ of judicial review.

The appointment of Suella Braverman in February last year as Attorney General, an outspoken critic of the judicial system, arguably expedited their plans for pruning judicial review.

Braverman was not subtle in her views on judicial reform, writing that judges have a ‘chronic and steady encroachment’ on political turf and accusing the judiciary of ‘trespassing into inherently political terrain for which a legal answer is wholly insufficient’.

Throw in the replacement of Dominic Raab, a fellow judicial adversary, as Secretary of State for Justice over Robert Buckland along with a large majority in the Commons and it’s a recipe for a dangerous encroachment on core constitutional principles such as the rule of law, separation of powers, and checks and balances.

 

Canary in the coal mine

Considering the factors above, the bill was surprisingly ‘milder’ than had been predicted. However, it suggests that the Government is serious about restricting the power of the judiciary and they’re unlikely to stop there. Along with the proposed Bill of Rights reform, the Government appear to be pernicious in their actions to hack away at judicial power.

Speculation of a new ‘interpretation’ bill being introduced later this year confirms these suspicions. The Interpretation Bill would annualise the process of overturning by judicial review rulings by creating a process every year that allows Ministers to list judicial outcomes they don’t agree with and reverse them.

Raab said ‘We’re identifying the problems and we’re making sure we fix them… We will get into the habit of legislating on a more periodic basis and thinking about the mechanism for that. Where there have been judgments that, albeit properly and duly delivered by the courts, we think are wrong, the right thing is for parliament to legislate to correct them’.

Shooting the messenger?

It is no secret that the power of judges has grown significantly in the past few decades. This is because legislation itself has spread into every corner of public and personal life. For example, family life and the environment historically had minimal legislative interference. Parliamentary Sovereignty gives Parliament the power to adjust legislation but until that is done it is the responsibility of the judiciary to independently determine whether new laws contradict existing law.

Creating rhetoric that judges are ‘enemies of the people’, as infamously put by the Daily Mail, because they are overstepping their roles and interfering in politics has dangerous populist undertones. It distracts the public from the conspicuous gain the State receives in power when judiciaries lose it. In addition, the Government’s track record of abiding by the law – both international with the Internal Market Bill and domestic with COVID-19 rules – suggests the last thing the Government needs is a reduction in accountability.

 

 

About the author: Jessica Culnane is a contributing Features Writer with in-depth knowledge of policy, politics, and economics. She’s interested in technological advancements, business developments, data, and culture.

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