Ignoring the Courts
The balance of powers in the constitution relies on a predictable relationship between the executive (the prime minister and the cabinet), Parliament, and the courts. That sharing of power is supposed to be dull but each has a tendency to push the limits of its own role.
In Parliament the House of Lords has proven to be a bulwark against some of the legislative aims of the government and the Privileges Committee is certainly not holding back in its investigation of Boris Johnson.
Meanwhile the courts have often pushed the limits of the common law and can step in when Parliament refuses to act. Recent decisions around Brexit and the prorogation of Parliament showed that the Supreme Court is not afraid to be active in the political arena.
However it is undoubtedly the executive that does the most to push up against constitutional limits and disrupt the balance of powers. It is hard to trace the history of this practice exactly but the increased use of special advisors by the previous Labour government was a major factor. Now, long gone are the days when the prime minister is merely the ‘first amongst equals’ and instead Number 10 Downing Street acts as a nexus of power.
The result is not necessarily more primary or secondary legislation but the primary legislation that does get enacted in Parliament grants more power to the executive, often in the form of Henry VIII clauses, and then the secondary legislation that is passed goes much further than ever before with far less scrutiny.
Indeed, amidst recent strike action, the Strikes (Minimum Services Levels) Bill has been criticised for granting ministers far too much discretion when it comes to determining minimum service levels.
The reason I mention all of this is because on Saturday, The Times reported that Sunak plans to take things further than ever with proposals that would almost ignore the courts entirely.
In the context of small boat crossings across the Channel, the prime minister wishes to simply disallow any appeal against deportation or, at the very least, only allow an appeal once the migrant has already been deported out of the UK.
Furthermore the proposed legislation that is still being drawn up would seek to disapply certain elements of the Human Rights Act and would allow for the detention of migrants in the UK.
Naturally this attempt to cut the courts of the equation would face problems in…..the courts. Home Office lawyers rightly predict that any migrant about to be deported in this way would bring a judicial review against the decision and have a very good chance of success. The proposals also appear to breach the obligations of the UK under the Refugee Convention.
In the midst of the debacle around small boat crossings, it is not clear why the government wants to put itself through this battle again. Migration remains a hot button political issue and with a general election on the horizon it is understandable that the prime minister and Home Secretary want to be seen to be ‘doing something’.
Unfortunately this is just not the way to do it. Not only is it unrealistic in terms of its prospect of success but it further disrupts that constitutional norm of the balance of powers. Each time the executive legislates in this way it creates a new battleground with Parliament and the courts. It might not always win that battle but even if it moves the needle slightly further, it opens the door for future prime ministers to push harder and try again.
The vaunted flexibility of the UK’s constitution is also the thing that makes it vulnerable to excesses. The balance of power is a delicate one.
This week on the podcast we explore the dangers of an oral contract. A claimant was guaranteed a fee if a property sold for £6.5 million but what should happen when it eventually sells for less than that asking price.
Episode link: https://uklawweekly.com/2023-uksc-3/
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