LORD TAVERNE
Threats to the independent judiciary risk our democracy
Britain’s traditional parliamentary democracy, once much admired abroad, has been based on the following: government by parliamentary majority; safeguards protecting individual and minority rights; an independent judiciary; and a non-political civil service which accepts the need to implement government policy but also its duty to “speak truth to power”. At times it has been felt that either the executive or the judiciary has grown too strong.
In the 1970s, the prominent lawyer and Conservative politician Lord Hailsham, warned of the danger of an “elective dictatorship” by the executive. Today, the right wing of the Conservative Party is worried about the excessive power of the judiciary. Their main concern is the ruling by the Supreme Court that Boris Johnson’s prorogation of Parliament, to limit effective scrutiny of the executive, was unlawful.
Suella Braverman, former deputy chair of the European Research Group, who was appointed Attorney General soon after the prorogation judgment, attacked judicial excesses more generally. “Politicians,” she wrote, “must take back control from unelected, unaccountable judges who are acting like political decision makers. The political has been captured by the legal. Decisions of an executive, legislative and democratic nature have been assumed by our courts.”
She clearly had in mind not only the prorogation judgment, but a development of the law to control executive excess, namely judicial review ( JR).
This, broadly speaking, enables a judge to overrule the decision of an authority on three main grounds: illegality – if government or the authority in question did not have a legal power to make a decision; procedural unfairness; and irrationality – if a decision is so unreasonable that no reasonable people could have made it. Braverman and others on the right suggested that JR was going too far and should be re-examined.
An independent inquiry was set up, chaired by the former Conservative justice minister, Lord Faulks. Perhaps to the government’s disappointment, it did not propose sweeping changes to judicial review.
The committee concluded: “Our view is that the government and Parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action. Politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers.”
The government has indicated that it is going ahead with some changes that will, to a degree, limit judicial review. The Lord Chancellor, Robert Buckland, has said, somewhat ominously, that “there will be other proposals coming down the line that you may find more controversial”.
The most significant reason for disquiet, however, is the attitude of the occupant of No 10. Boris Johnson has repeatedly demonstrated a lack of concern for the rule of law. Ministers or aides who are loyal Johnsonites seem to be able to ignore the ministerial code of conduct with impunity.
Dominic Cummings was allowed to continue as principal aide after his infamous trip north, until he fell out of favour for other reasons.
Priti Patel was judged by an independent investigator to have acted as a bully in breach of the ministerial code but continues as home secretary.
Matt Hancock, Johnson claimed, was sacked for an obvious breach of the code. But in fact, Hancock continued to have Johnson’s confidence until public pressure forced him to resign.
As for the future of the civil service, the seemingly reluctant resignation or retirement of a growing list of senior civil servants has caused some fears about Johnson’s commitment to civil service independence.
Our legal system is still strong. Our long tradition of parliamentary democracy should win in the end. But at the moment it is under serious threat. A big parliamentary majority and a Prime Minister who does not care about the rule of law is a very dangerous combination.