Judges are showing more self-restraint, says Buckland

This is not a revolution but routine maintenance to preserve a vital instrument for protecting citizens

JUDGES have become more selfrestrained since the backlash against the Supreme Court’s ruling against Boris Johnson’s suspension of Parliament, the Justice Secretary says today.

In an article for the Sunday Telegraph, Robert Buckland described the legal cases surrounding the prorogation of Parliament in 2019 as “troubling” examples of “political controversies” entering courts.

But, writing ahead of the introduction of legislation to overhaul the system of judicial review, Mr Buckland states that the best solution to perceived “judicial overreach” is not the introduction of new laws, but “judicial restraint”. “I believe we are now starting to see more of the latter in our most senior courts,” he states.

Mr Buckland confirms plans to allow judges to “suspend” quashing orders, in order to allow the Government the time to take corrective action before a court strikes down measures, such as sanctions against terrorists, which are deemed to be unlawful. Additionally he says the Government will act on a type of judicial review used in immigration cases to “frustrate deportation proceedings”. Judicial review is the mechanism by which judges are asked to rule on the lawfulness of a decision or action by a public body.

Legal observers have pointed to recent examples they say show a more “deferential” approach by senior judges, including a ruling earlier this month which dismissed a legal challenge to the Government’s two-child limit on welfare payments.

The Judicial Review and Courts Bill, which will be introduced this week, follows a review of the system that was commissioned after the Supreme Court drew the ire of senior Conservatives in 2019 after ruling that Mr Johnson’s prorogation of Parliament was unlawful.

At the time, the Prime Minister said he “strongly disagreed” with the judgment, and ministers believe judges “overstepped” the jurisdiction of the court in its ruling.

Mr Buckland calls judicial review a “vital instrument in holding governments to account”, but adds: “Political controversies have entered the courts in a way which troubles me.”

In the vast majority of cases, Judicial Review is the servant of Parliament. These are not my words, but those of Lady Hale, the former president of the Supreme Court. Judicial Review is and will always be a vital instrument in holding governments to account and protecting citizens from an overbearing state.

However, in recent times, political controversies have entered the courts in a way that troubles me. The legal cases surrounding the prorogation of Parliament in 2019 are perhaps the best examples, but by no means the only ones. Many observers thought this was an example of judicial overreach. If this problem exists, the best solution is not legislative, it is judicial restraint. I believe we are now starting to see more of the latter in our most senior courts.

Earlier this year, a High Court judge expressed concern that a number of MPs had added their names to a Judicial Review in which they had no standing. I share this concern. Such grandstanding by politicians can give the public the impression that legal proceedings are being used to advance political causes.

This is not what the courts should be for. I have a duty to prevent the judiciary being dragged into politics.

Our Judicial Review and Courts Bill, which I will introduce to Parliament this week, seeks to banish the ghosts of Judicial Review past, to make it fit for the present, to ensure that it is not abused to conduct politics by another means or to create needless delays in aspects of government. I believe reform is needed because, while Judicial Review is a vital instrument, it can also be a blunt one. The “all or nothing” nature of the process is not always conducive to good public policy.

I am not satisfied that the courts currently have the range of remedies at their disposal to provide enough flexibility, which hampers the effectiveness of the Judicial Review process.

Perhaps the best example of the limitations of the current range of remedies available to the courts comes from a 2010 Supreme Court case, HM Treasury vs Ahmed. The details of the case are complex but revolve around asset freezes imposed by the Treasury on suspected al-Qaeda members. The courts ultimately ruled that the Government had acted beyond its powers and were left with no option but to strike down the sanctions with immediate effect. The Brown government was then forced to rush emergency legislation through Parliament within a week to reimpose the sanctions on a group of people of high concern to the security services.

It is, of course, vital that the courts prevent public bodies from acting beyond the powers granted to them by Parliament. But was it proportionate that the inescapable decision made by the courts was to remove the sanctions on individuals suspected of financing terrorism in this case? I don’t believe so, which is why I want Parliament to give the courts powers to suspend Quashing Orders. In the Ahmed case, had this been an option, the sanctions could have remained in place for a limited period while the law was amended.

I also want to act on a specific type of Judicial Review that is frequently used in immigration cases to frustrate deportation proceedings. In 2007, the Supreme Court upended the system Parliament created under which certain decisions in immigration tribunals should not be subject to Judicial Review in the High Court. Parliament voted to exempt such decisions from Judicial Review in the High Court for good reason – the Upper Tier Immigration Tribunal has the same status as the High Court. Applying for Judicial Review to both is simply a duplication of process.

The 2007 decision has resulted in a significant drain on the courts’ time. Of the thousands of applications made in recent years using this loophole, only a very small percentage were successful. They now comprise 10 per cent of all immigration Judicial Reviews, causing delays and imposing an unacceptable burden on the taxpayer.

It is inevitable that governments will face challenging court cases, but bitterness at undesired outcomes should never be the motivation for reform and it is certainly not mine. That the Government and other public bodies occasionally lose in court is a sign of a system that is working. But our system of government and constitution have evolved over centuries to serve the needs of the citizens of our country. It is inevitably the case that, through all that change, the constitution will at times require attention to ensure that it continues to strike the right and sensible balance between institutions.

I regard myself as a constitutional plumber. This is not a revolution. It is routine maintenance. I believe our Bill is a prime example of sensible reform, respecting the need to be vigilant in order to maintain the vital checks and balances within our unwritten constitution.