A few weeks ago, the BBC’s outgoing political editor Laura Kuenssberg described the government’s decision to re-investigate disgraced MP Owen Paterson (and pause his suspension in the meantime) as a ‘proper Westminster Village story’. Hundreds of people (quite rightly) pointed out just how inappropriate Kuenssberg’s description was. Of course, correcting journalists’ framing has become something of a national pastime online, but this example was striking. In almost any other country, this would have been a constitutional matter, rather than a case of simple political intrigue.
The UK’s constitution is famously (or notoriously) ‘uncodified’. Instead of a fairly rigid system of rules governing how the state works, a sovereign Parliament (in other words, a government with a working majority) can change the mechanics of the state as is sees fit. The Paterson affair—an attempt to retrospectively weaken the system of scrutinising government ministers—shows how this can work in practice.
The Johnson government has been particularly adventurous with its use of this power to change things. This is probably partly due to the genuine constitutional adjustments needed in the wake of the Brexit referendum, but it also reflects a zealous and power-hungry streak in the Cabinet. One of the government’s major projects at the moment is Dominic Raab’s plan to drastically reform the system of judicial review.
The Judicial Review and Courts Bill proposes to weaken the courts’ powers by altering the types of orders that judges can make against the state, and by abolishing entirely the jurisdiction of the High Court to review the decisions of tribunals (notably, the immigration tribunals). The current Bill is bad enough, and it has already been criticised by the Joint Committee on Human Rights, but there are suggestions that Raab, Johnson, and Suella Braverman want to go further. They hope to allow the government to simply ignore any rulings that it disagrees with.
A judicial review is a legal claim brought in the name of the state (technically, like criminal prosecutions, judicial reviews are brought by the Queen) against the state, in which the state (in the form of judges) decides whether the state has broken its own laws. Quite often the state even funds the claim through legal aid. It’s important to be cautious about seeing judicial review as a solution to political problems—we cannot litigate our way to socialism—but it’s obviously a very important mechanism for holding a state to account.
Judicial review cases deal with all sorts of issues, ranging from the individual (for instance, where social workers have refused to believe that a homeless child was destitute) to the local (such as whether the implementation of low-traffic neighbourhoods adequately considers the impact on people with disabilities) to high matters of state. Recent examples include the Supreme Court challenge against Johnson’s decision to prorogue Parliament, and a case about whether he should have sacked Priti Patel for bullying. In an important judicial review case just before Christmas, the High Court found in favour of a number of the Windrush Scandal’s victims: the Home Office had refused the claimants citizenship because they had not been in the UK at the relevant time—but that was because the Home Office itself had refused to let them back in.
Raab’s proposal is a drastic one. As things stand, as the Supreme Court put it in 2015, ‘it is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone, including (indeed, it may fairly be said, least of all) the executive’. When the government loses a case, the courts can quash any unlawful actions, and order a minister to comply with the law. Ultimately, a judge could commit a public official to prison for breaching a court order in exactly the same way as the Insulate Britain protesters have been jailed for breaching an injunction.
This may sound far-fetched, but the government does occasionally come close. In 2017, for example, a twenty-three-year-old asylum seeker applied to have then-Home Secretary Amber Rudd sent to prison for breaching multiple court orders requiring her to bring him back to the UK. It’s this system of binding and enforceable legal remedies that Raab is currently trying to weaken, and which he eventually hopes to be able to ignore entirely.
In a system of Parliamentary sovereignty, the government has always been able to change the legislation in order to avoid the consequences of an inconvenient court decision. What’s new and troubling about Raab’s approach is that it would confer that right on the executive. It’s a power grab.
It’s also quite a significant constitutional change, and the most recent proposals weren’t even in the Conservatives’ election manifesto, so there’s no democratic mandate. And it’s a characteristically Johnsonian move: discreetly autocratic, informed by a sense of personal ministerial superiority, and designed to relieve the government of the hard work of legislating or complying with the law.
Confected panics about judicial review are nothing new. At the tail-end of the Thatcher years an influential booklet called The Judge Over Your Shoulder was distributed among civil servants, which painted the review courts in an unflattering light. The mid-90s then saw a mild media frenzy about a perceived increase in ‘judicial activism’, which now recurs periodically. The Cameron government made its own attempt to water-down judicial review in 2015.
But these proposals go further than any UK government has gone before. Like the Nationality and Borders Bill, and like the Police, Crime, Sentencing and Courts Bill, these curbs on judicial review are measures that were once a hard-right fantasy, but are now likely to get voted through with a healthy majority. Even the American right, with its fetish for checks and balances, prefers to stuff its courts rather than strip them of their powers.
The current government is characterised by ministers who have broken the rules, and who have then tried to weather the legal and political storms. Johnson, Patel, Hancock, Jenrick, Paterson—it may be easier to list the government ministers who haven’t found themselves in trouble. The government is also probably fed up with the constant stream of successful legal challenges that have been brought in recent years. In that context, it’s easy to understand why the government is so keen to free itself from the obligation to comply with legal rulings.