Proposed legal changes are based on the fallacy that judges are out of touch with public opinion
Another week, another enemy. Hovering into ministerial sights is the judiciary, whose pronouncements have been cast as “out of touch” with Brexiters’ socially conservative values. In response, ministers propose to change rules that would put some government decisions beyond the reach of the courts. This would be a backward step. It signals a move to oust judicial review by law in any area the government wants. If enacted, this will mean that the government can put in “ouster clauses” that render its promises meaningless. For example, campaigners who think that the legally-mandated spending of 0.7% of national income on aid could be enforced by the courts may find the government able to wriggle out of that commitment thanks to such a device. The lord chancellor, Robert Buckland, defends this expansion of power as following the recommendations of an independent panel led by the former justice minister Lord Faulks. Yet while he did not think significant reforms were needed, the government plainly does.
Judges are not unquestioning cheerleaders of a political faction. The principle of a rule of law, recognised by statute, requires that all public bodies comply with the law, and that recourse to the courts must be possible when they do not. Judicial review allows this to happen, and has forced the government to act in important matters such as privacy, welfare and the environment. The government thinks that the executive should either be exempted from this principle or not be bound by uncongenial judicial verdicts. Ministers have cloaked their power grab in an unmeritorious argument that the supreme court has failed to keep out of the political arena. Brexiters claimed a “constitutional coup” when judges declared Boris Johnson’s attempt to suspend parliament “unlawful, void and of no effect” in 2019.
