Over the weekend I spent too much time playing NHL 22. The PlayStation game allows you to take control of virtual ice hockey players as you take to the rink. One of the main moves in your arsenal is called a ‘deke’ where your character basically moves as if to go one way before heading in the other. A classic misdirection.
This is what the government pulled off recently with respect to judicial review reform and I am sad to say that most legal commentators fell for it hook, line and sinker.
When the government originally proposed reforms to judicial review many of us feared the worst. It was something that they had been eyeing up for a while and the time had come to pounce. Ministers had got used to the idea that they could just make legislation but became more vocally annoyed when pesky judges stepped in and placed clear limits on their power by way of judicial review.
There are many examples of this but perhaps the best one is the prorogation judgment where Boris Johnson attempted to suspend the Parliamentary session and the Supreme Court held that such a move was unlawful. Lady Hale famously wore her spider brooch when the decision was handed down and her court is remembered as one of the more activist in modern times.
The next stage of this deke was the publication of the Judicial Review and Courts Bill. After all of that consternation its proposals were….surprisingly modest. As the name suggests it does touch on judicial review and if it eventually gets passed into law it will make it harder for judges to put the reins on politicians, especially in the area of immigration law.
Nevertheless the court under Lord Reid had proven itself to be much more malleable to the will of the government and it seemed that this was one of the reasons why the government was not turning the screws so tightly on the judicial branch.
I wrote about the Bill for subscribers at the time and argued that while “commentators who are dismissive of the Bill underestimate the potentially devastating effects…this legislation could well set a precedent for the future and continue to paint judges into a corner”.
As the modern philosopher Alan Partridge put it: “needless to say, I had the last laugh”.
Yesterday the new Justice Secretary, Dominic Raab, gave an interview with the Sunday Telegraph where he suggested that the government was going to take another run at judicial review.
In the context of talking about the Human Rights Act Raab said:
“he is devising a "mechanism" to allow the Government to introduce ad hoc legislation to "correct" court judgments that ministers believe are "incorrect".”
If your are under the misgiving that this means he is only talking about judgments from Europe then the minister later clarifies this by stating that he wants to protect Parliament from judicial legislation abroad and at home.
At this point I think it is important to explain something. The constitution in the UK is based on an idea of parliamentary sovereignty, in other words Parliament is free to legislate how it wishes and the role of the courts is to interpret that legislation. If Parliament disagrees with a judgment and decides to change the law then that is fine.
However it becomes problematic if a single minister decides to do the same thing. This would essentially set that person up as a judge that rules by fiat outside of the traditional court system with almost no oversight whatsoever. For a minister whose job role specifically requires them to uphold the rule of law this policy makes it look like we have put a fox in charge of the hen house.
For those naive, summer children who thought that the Judicial Review and Courts Bill was the end of our worries this fresh attack represents a rude awakening.
In the podcast this week we look at an employment law case where an accusation of racial discrimination was made against the Royal Mail. A change in the wording to the legislation back in 2010 appeared to alter the burden of proof and the Supreme Court had to decide if that was indeed the case.
Episode link: http://uklawweekly.com/2021-uksc-33/
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Brexit bigotry biting.