What does the new government mean for public lawyers?

13 December 2019

Friday 13 December 2019 will be remembered as the day the Conservatives won their biggest majority since the 1980s and finally obtained the dominance required to complete the Article 50 process and take the UK out of the EU. Even so, they must act swiftly if they are to deliver on their pledge to effect an orderly withdrawal by 31 January 2020. The Prime Minister will doubtless lean heavily on his 80 strong majority to pass the complex legislation required to ‘get Brexit done’ in so short a time. It looks like this mammoth task is already getting underway as there is talk of MPs sitting on the Saturday before Christmas and the Lords sitting between Christmas and New Year. Once we are out, the urgency will continue.

The implementation of Brexit is a major undertaking, and while a thumping majority will certainly help, winning worthwhile trade deals with the EU, the USA and the wider world will depend as much on negotiating skill, the goodwill of partner nations and legal expertise as on parliamentary arithmetic. We have previously voiced concerns about the immensity of the task of delivering Brexit and the likely reliance on statutory instruments. If there is inadequate time for the proper scrutiny of bills, and if statutory instruments are to be used in place of primary legislation, it is possible that the legal arrangements put in place will be tested in the courts, creating a lot of work for lawyers and potential confusion and delay for the government while the legal effects of the Brexit arrangements are being established. Aside from Brexit, a new government with a large majority and bold goals in mind for domestic policies runs the risk of passing legislation that struggles to stand up in court. We have previously discussed the Universal Credit Regulations which are one example of a major policy reform heralded by the coalition government but which in practice was implemented in a way that the courts held to be unlawful.

From our perspective as public lawyers, another notable legal implication of the new Conservative majority is that the government may proceed with its manifesto proposals on justice, including its appetite to “update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government”. This is easily said, but achieving worthwhile reform of human rights and administrative law protections is a delicate and sensitive business.

The purpose of the European Convention on Human Rights, which is given effect to in the UK by the Human Rights Act 1998, is to provide protection in mostly uncontroversial areas of civil and political life against interferences by the state. It is difficult to do much “updating” of the law in this area without calling into question the government’s commitment to fundamental matters like fair trial rights, freedom of expression, the protection of life and the prevention of torture. Adjustments in such territory require careful thought and scrutiny to be effective as opposed to corrosive. That is not to say changes cannot be made, particularly to help make the law more transparent and accessible. For example, once Protocol 15 is ratified, the Preamble to the European Convention on Human Rights will be updated to refer explicitly, and give greater prominence, to the principle of subsidiarity and the doctrine of margin of appreciation. With appropriate care and skill, and proper parliamentary scrutiny, the government can doubtless deliver similar refinements and adjust emphases in human rights legislation without trampling on fundamental protections.

The same is true of administrative law more widely. It is difficult to overemphasise the importance of judicial review and administrative law generally in securing good and lawful governance by those in power. Whatever differences of opinion there may be about the UK constitution, it is clearly underpinned in part by the rule of law – a commitment to justice and fairness partly given practical effect by administrative law. Only totalitarian regimes think they can do without legal oversight, and politicians and officials in mature democracies welcome the role of the courts in adjudicating the boundary lines of state power. It is also important to note that judicial review and other public law litigation are mainly last resorts narrowly limited to challenging the scope of powers, the rationality of thought processes and the proper application of procedures. The courts seldom have the power to substitute their own views if they think a different decision would have been better. There are doubtless many ways in which the existing system of administrative law could be re-balanced in the sense of tightened up, clarified and rendered more comprehensible, but, given that it is a delicately balanced mechanism as it is, this will require great care if it is to do more good than harm.

Whether human rights and administrative law actually require updating and rebalancing is a matter for debate, but what is not debatable is that attempting to do so requires the utmost subtlety or else it could imperil, rather than enhance, this country’s way of life.

A version of this blog was published on LexisNexis on 13 December 2019.

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