When will the government end its futile campaign against the judiciary?

We have endured enough constitutional turbulence for one lifetime

December 31, 2022
Photo: Karl Black / Alamy Stock Photo
Photo: Karl Black / Alamy Stock Photo

Boris Johnson’s arrival in Downing Street in July 2019 marked the beginning of a period of constitutional turbulence, and the start of what many have come to regard as a distinctly disreputable chapter in our politico-legal history. The Internal Market Bill—which purported to override provisions in the Withdrawal Treaty previously negotiated with the EU—provoked justifiable outrage and was subsequently withdrawn. The Northern Ireland Protocol Bill, which is based on the entirely false premise that the UK is entitled to suspend the operation of the new Brexit border down the Irish sea, on the grounds of necessity, likewise provoked well-deserved outrage. Worse still is the overt hostility the government displayed (continues to display) to the judiciary. At the end of 2022 we are still very much living with the effects of all this and it is worth examining the harm that has been done.

The most memorable chapter opened in September 2019, with the Supreme Court’s judgment in the prorogation case. Johnson had devised a cunning plan to prevent parliament from jeopardising his exit strategy from the EU, then scheduled to take place in a little more than a month: namely, to suspend parliament—then nearing the end of a long and turbulent session—for a period of five weeks instead of the customary 10 days or fewer. Judicial review proceedings were promptly brought to torpedo this plan. For a brief moment the judgment of the Supreme Court caught the imagination and attention of the nation, courtesy of the internet; but it was the reaction from politicians which had an enduring effect. 

To appreciate fully the absurdity of some of the political reaction to the judgment, it is important to appreciate that the reasoning of the court was based fairly and squarely on firmly established constitutional principles, as well as on case law precedent. Lawyers on behalf of the government argued that the prorogation of parliament, by its very nature a political act, could not be successfully challenged in a court of law. Indeed, they argued that the process of prorogation was in fact immune to any legal challenge by virtue of Article 9 of the 1688 Bill of Rights, which expressly refers to not impugning any “proceedings in parliament”. In rejecting these arguments, the court had focused on the impact such a lengthy period of inactivity in Westminster would have. Remarkably, no explanation had been provided by the government to justify a five-week break instead of the customary short interval, nor had it seen fit to offer any evidence to rebut John Major’s assertion that the Queen’s Speech, which would precede any new parliamentary session, usually required no more than four to six days of preparation. The court concluded that the exercise of an unfettered power to prorogue parliament would undermine the constitutional principle that the executive (that is, the government) is accountable to parliament for its actions and decisions, and subject to its scrutiny. And as for the Article 9 argument, the court agreed with the view taken in a previous case by the Supreme Court that Article 9 was solely concerned with the protection of freedom of speech and debate. (It could be said, as indeed some have, that such an interpretation of Article 9 is too narrow; but nonetheless what the court did, and was bound to do, was to engage in an entirely conventional exercise in statutory interpretation. In the event it chose to be guided by one of its own precedents.) 

Within hours of the judgment being delivered, a chorus both of disapproval and indignation had begun to make itself heard within government ranks. The tone was set by the then Leader of the House of Commons, Jacob Rees-Mogg. He reportedly described the decision of the Supreme Court as a “constitutional coup”. He was shortly followed by the then attorney general, Geoffrey Cox, who solemnly declared that the Supreme Court had “invented” new law, and came perilously close to proposing that in future justices of the Supreme Court should be properly vetted prior to their appointment. An insight into how Johnson himself regarded the judgment can be gleaned from the last speech he made in the House of Commons before stepping down as prime minister. In the course of extolling his government’s achievement in successfully concluding a withdrawal treaty with the EU, he declared: “We saw off Brenda Hale.” 

In the wake of orchestrated expressions of outrage from ministers and backbenchers alike, the notion of some form of turf war between the senior judiciary and politicians found expression in the Conservative party manifesto issued prior to the 2019 general election. It contained a promise to reform judicial review, and specifically to prevent such proceedings being used to “conduct politics by other means”. This message was reinforced by Suella Braverman following the government’s re-election. Shortly before her appointment as attorney general, she declared that judges had made a “chronic and steady encroachment” on political turf and that it was high time for parliament to “take back control”. The use of a phrase more commonly associated with the pro-Brexit campaign is readily explained by the fact that Braverman had also been the chair of the group of Conservative MPs euphemistically called the European Research Group. 

The government chose to begin implementing its manifesto promise by setting up a “panel of experts” to consider what changes should be made to the existing system of judicial review. The outcome was not one for which the government had hoped. Only a few changes were recommended, none of which were of real significance so far as any potential reduction in the decision-making powers of the judiciary was concerned. This did not deter the Ministry of Justice from putting a remarkable gloss on the panel’s findings by stating—quite incorrectly—that the panel had identified a tendency on the part of judges to assess the merits of the decision under review rather than the process which led to that decision. Ultimately, the government’s dissatisfaction with the existing system and the findings of the panel did result in one change of note, incorporated into the grandly titled Judicial Review and Courts Act 2022: judges were given the discretionary power to decline to give retrospective effect to any so-called “quashing order” which they intended to make, if the consequences of doing so appeared to be disproportionately unfair or impractical. If this sounds like a technical tweak of interest to specialists rather than fundamental reform, that’s because it is.

We also suffered through a brief period in which the government focused its attention on possible reform of the Supreme Court itself. A set of recommendations from a supportive thinktank were taken very seriously. Those recommendations included: legislative steps to change the court’s name and status; limiting its powers to those previously exercised by its predecessor, the Appellate Committee of the House of Lords; and reducing the number of permanent judges. The reaction of the legal profession and luminaries, once this thinking had become known, was one of derision. It was immediately pointed out that the powers of the Supreme Court were, except in one wholly irrelevant respect, identical to those exercised by the old Appellate Committee; and that a change of name and reduction in the number of its judges were hardly likely to affect the way its judges went about their business. Ideas on those lines were then quietly dropped. 

The government—specifically Dominic Raab, who was now the justice secretary, and Suella Braverman—then proceeded to toy with another initiative: bringing annually before parliament a so-called “Interpretation Bill” which would reverse any court decisions involving policy and public issues of which the government disapproved. This notion unsurprisingly provoked widespread condemnation, and this too was quietly dropped. 

A succession of initiatives directed at curbing the powers of senior judges in judicial review cases thereupon came to an ignominious end. Cutting his losses, Dominic Raab has since resorted to seeking to reduce what he has plainly regarded as the malign influence of the European Court of Human Rights and the Human Rights Act on decisions in judicial review cases, by laying before parliament a “Bill of Rights Bill” intended to reverse this position. This is notwithstanding that a review previously commissioned by the government under the chairmanship of a retired Court of Appeal judge concluded that on the whole the Human Rights Act had operated satisfactorily. At the time of writing, it seems unlikely that this Bill will find its way onto the statute book—certainly in its present form. Several eminent legal minds have already identified multiple flaws, even before the Bill has really begun its passage through the House of Commons. 

It is no overstatement to say that the campaign waged by the government against the senior judiciary has been without precedent. Whereas the hostility towards judges by politicians had in the past usually been confined to the odd grandstanding MP and disgruntled home secretaries—both Labour and Conservative—whose departments had been on the receiving end of adverse decisions (Michael Howard and David Blunkett both spring to mind), this campaign has actually reflected government policy. We have been forced to suffer a maverick prime minister with little regard for constitutional conventions; an attorney general who did not understand the constraints of her office; and a justice secretary with his own agenda. As 2022 draws to a close one hopes we have seen the worst of it—but we can’t be sure.