What does the new government mean for public lawyers?
However, reports of a medium-term resolution to the health crisis are encouraging. Progress is being made to distribute mass antibody tests and, later, a vaccine. Political thinkers are starting to sketch designs on how we will view the role of government after the crisis, with a much-enlarged state and national debt. This begs the question of what public lawyers should be looking for on the horizon - aside from Parliamentary reviews of provisions of the Coronavirus Act 2020.
We have written previously in our blog What does the new government mean for public lawyers? on the UK Government’s controversial manifesto proposals to ‘update’ administrative law in December 2019. In this blog, we consider the developments on this front.
There was a particular, though vague, set of pledges about constitutional reform in the Conservative manifesto. It committed the Government to:
The Queen’s Speech announced a Constitution, Democracy and Rights Commission, to make good these promises:
We will set up a Constitution, Democracy and Rights Commission to consider the relationship between Government, Parliament and the courts and to explore whether the checks and balances in our constitution are working for everyone”.
The Constitution, Democracy and Rights Commission will be run by the Cabinet Office. It has been promised within the first year of Boris Johnson’s administration – though this was promised before COVID-19 came to our shores. Michael Gove, as Minister for the Cabinet Office, will oversee the review, with new Attorney General Suella Braverman playing a key role. Lord Sumption is tipped to be the independent figure who will lead the review.
What will the Commission look at and what might it recommend? We cover the background to these key manifesto pledges and any developments on them below.
This is the pledge with the widest, and perhaps boldest, remit. Although there has been significant constitutional reform in recent decades - particularly under New Labour - these reforms did not rethink the fundamental relationships between the courts, Parliament and the Government.
The Commission comes in the context of mounting tensions between the Government and the courts. We wrote previously in our blog Enemies of the constitution? The words of those attacking independent judges are corrosive and wrong about the Government’s public statements on its disapproval of the Supreme Court’s prorogation judgment in September 2019. Animosity came again when in February, Downing Street announced it “bitterly regret[ted]” the decision of the Court of Appeal to block it temporarily from deporting a number of foreign national offenders.
These statements show the Government’s perception of increasing interference by the courts into matters which it views as purely political. The policy paper ‘Protecting the Constitution’ was released in December 2019 by think-tank Policy Exchange, and is also critical of what it sees as growing judicial overreach in the courts. In response, the paper proposes a number of reforms. These include encouraging the Lord Chancellor to exercise the right to vet potential Supreme Court appointees.
In February 2020, the then-Attorney General Geoffrey Cox QC confirmed that the Government was considering giving ministers the powers to vet judicial appointments. He said the Government would not look to follow the US’s highly politicised Supreme Court confirmation system (the Government also confirmed this in Parliament). But it was considering following the Canadian model, where a Parliamentary committee interviews Supreme Court candidates. Here, Cox suggested, the Commission could consider a joint committee of the House of Commons and House of Lords doing the same.
Various governments over the last decade have taken aim at the Human Rights Act, which incorporates the rights from the European Convention of Human Rights into UK law. David Cameron proposed to repeal it in favour of a British Bill of Rights and the Conservatives’ 2017 manifesto promised to ‘consider our human rights legal framework when the process of leaving the EU concludes’. In the February speech referred to above, Geoffrey Cox suggested the Commission could reconsider a British Bill of Rights.
It is unclear what a British Bill of Rights would add or alter to our existing human rights framework. As we have written previously, the European Convention provides fundamental protection for individuals and businesses against incursions by the state into their lives. When the Brexit transition period is concluded, the EU Charter of Fundamental Rights, currently directly effective in UK law, will cease to apply in the UK. It is hoped the Commission will be wary of effecting considerable change in a short space of time to the UK’s fundamental rights framework.
Detail is lacking, at the moment, on the specific reforms in this area the Government thinks are necessary in the context of national security.
Recent governments have taken a close look at the role of judicial review. The Coalition Government introduced reforms to judicial review, including time limits in planning cases and expanding the circumstances where a judge had to refuse permission to hear a challenge. More substantive changes proposed by Chris Grayling, including changing the test for ‘standing’, which dictates which claimants are able to bring challenges by judicial review, did not get off the ground.
The new Attorney General Suella Braverman harbours concern about the ‘politicisation’ of judicial review, having penned a blog stating: ‘Prorogation and the triggering of article 50 were merely the latest examples of a chronic and steady encroachment by the judges... Parliament’s legitimacy is unrivalled and the reason why we must take back control… from the judiciary’.
It is possible that the Government may seek to go further than previous governments in reforming judicial review. Any attempt to clip the common law principles of judicial review may face resistance from the courts, whose supervisory role over the rule of law was restated last year in the Supreme Court case of Privacy International.
The impetus behind the Commission seems clear. The Government sees a growth in judicial activism by way of judicial review. Lord Sumption, who may lead the Commission, voiced parallel concerns in his Reith lectures of last year. Some see it as concerning that this perception is the reason for proposals of potentially very significant constitutional change.
The evidence pointed to by those who make the claim of increasing judicial activism is debatable; decisions like the Miller judgments are frequently highlighted. However, it is possible to read both Miller decisions as relatively orthodox restatements of Parliamentary supremacy: the first, asserting the need for Parliamentary approval when this had been usurped; the second, checking the Executive for an exercise of the prerogative with grave consequences, when it gave no reason at all for doing so. The decisions did not pass comment on ‘rights’ and ‘wrongs’ of Brexit. Many argue they fulfilled the court’s orthodox constitutional role in judicial review - policing the rationality of thought processes and procedures, in ensuring that decisions which exercise state power are made lawfully. A parallel point can be made about the Court of Appeal deportation injunction mentioned above, which Downing Street took issue with. In that case, the Court of Appeal enforced the Home Office’s own policy of ensuring immigration detainees had access to legal advice before deportation.
Even if one disagrees with that reading of decisions such as Miller 1 and Miller 2, it is arguably concerning that considerable constitutional reform is being contemplated because of, at least partly, reactionary instinct about the merits of some judgments. The decision to vet Supreme Court nominees before Parliamentary committees would be very constitutionally significant; some see tension between this and the political independence of the judiciary. The decision must be soundly thought through. Care must be taken to make sure the reasons for proposing such changes match the gravity of their consequences.
Any incursion into the Human Rights Act and judicial review would represent a loss to mechanisms of holding the state to account. The COVID-19 crisis reminds us all that sometimes, decisive and wide-ranging state action is necessary. This is not, however, in tension with the idea that there be proper checks in place to ensure that such power is exercised properly. It is imperative that the Constitution, Democracy and Rights Commission, when it gets off the ground, bears this key principle in mind.
Nick De Mulder is an Associate in our Public Law team. Nick has assisted on a high-value Human Rights Act claim and on claims for judicial review of immigration authorities, a government agency and local authorities. He has assisted a charity and companies on GDPR and Data Protection Act compliance and on responding to Subject Access Requests. He has also assisted a defendant, and various witnesses, in preparing for and attending criminal trials.
Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.
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