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The British Union After Brexit: Issues of Sovereignty and Identity

State of the Judiciary: In Contempt of Judges

L’état du corps judiciaire, outrage(s) à magistrat
Elizabeth Gibson-Morgan

Abstracts

The legal uncertainties and legal disputes raised by Brexit have indirectly led to a growing use of judicial review and a more assertive judiciary. The tenth anniversary of the United Kingdom Supreme Court (UKSC) – officially set up in October 2009 – was a time to look back on its work reflecting on some of its key rulings as well as on its constitutional position. A special series of lectures were delivered by a judge from each of the four nations - represented in the Supreme Court – in November and December 2019 to reflect on the court’s work over the last ten years (2009-2019). The first Welsh speaking judge of the UKSC David Lloyd-Jones entitled his lecture “Wales: Law in a small nation.” That very year Brexit gave proposal to “ensure that it [judicial review] is not abused to conduct politics by another means or create needless delays” – as written in the 2019 Conservative manifesto. Such a proposal, they fear, would seriously undermine judges’ check on the lawfulness of the acts and decisions of the executive as well as judges’ authority.

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Introduction

  • 1 Ally of the People,” Lord Thomas interviewed by Alex Dean, Prospect, January/February 2021, p. 14.
  • 2 Ibid, p. 14.
  • 3 R (Miller and another) v. Secretary of State for Exiting the European Union [2017] UKSC 5.
  • 4 R (Miller) v. Prime Minister [2019] UKSC 41.

1Judges as allies of the people1 is the cause Lord Thomas of Cwmgiedd, the first Welsh person ever to hold the office of Lord Chief Justice of England and Wales, pleaded in 2021 as a reaction against persistent attacks against the Judiciary. In the same interview he pointed out that “critics have seized on recent rulings as evidence the judges have usurped their proper role”. 2No doubt he still had in mind the landmark rulings over Brexit that inflamed the British media and part of the political world. Judges were fiercely criticised for what was perceived as a form of “judicial activism” following their two key decisions now commonly known as Miller 13 and Miller 2.4 The attempts by judges themselves to defuse any potential criticisms were not enough. They found themselves unwillingly caught up in a controversy they wanted to avoid. As Lady Hale, the former President of the United Kingdom Supreme Court underlined in her memoirs:

  • 5 Lady Hale, Spider Woman. A Life (London, Penguin Random House, 2021), p. 210.

We were not having a political debate about whether or not the United Kingdom should leave the European Union. We were having a serious debate about important constitutional issues concerning the allocation of powers between government and Parliament.5

  • 6 Rebecca Moosavian, Clive Walker and Andrew Blick “The Untapped potential of proportionality in a Pa (...)
  • 7 Alex Dean, “A verdict never in doubt,” Prospect, January/February 2021, p. 1.

2More recently, judges have been blamed “for being too deferential to governmental decisions”6 over their handling of the Covid-19 pandemic. Such attacks as those the judges experienced during the Brexit process and later during the health crisis used to be extremely rare in the past as there was much deference towards judges in England and Wales with a “reputation for high calibre and integrity7 both nationally and internationally.

3The question in this paper is precisely to understand what the proper role of judges is. This is usually fairly straightforward in a civil law country like France where judges are expected to literally “say the law” (judex dicere) without meddling with the law-making process in the name of the constitutional principle of separation of powers. Whereas in the English common law higher courts’ judicial decisions set binding precedents and thus contribute to the making of the law. However, whether they are civil law or common law judges they all rule on judicial disputes impartially and independently based on the law. One of the most eminent British judges since the Second World War, Tom Bingham (the late Lord Bingham of Cornhill) explained that:

  • 8 A (FC) and others (FC) v. Secretary of State for the Home Department, 16 December 2004, [2004] UKHL (...)

The function of independent judges charged with interpreting and applying the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.”8

4In France and in Britain, still both members of the Council of Europe, it is in fact a legal requirement. Section 6(1) of the European Convention on Human Rights and Fundamental Freedoms which protects people’s right to a fair trial states that:

  • 9 www.echr.coe.int (accessed on 24/10/2021).

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.9

  • 10 “Ally of the People,” John Thomas interviewed by Alex Dean, Prospect – special issue on the Rule of (...)

5The incorporation in Britain of the European Convention on Human Rights 1950 by the Human Rights Act 1998 – effectively in October 2000 – did empower judges and strengthen the constitutional position of the judiciary in England and Wales through a more extensive use of their power of interpretation of the law and Judicial Review as a means of checking whether administrative authorities had exceeded their authority. Is it enough however to blame judges for “judicial activism,” a type of criticism more often heard in the United States of America against the judgments of the Federal Supreme Court? As Lord Thomas underlined, “attacking judges for activism is quite often concealment or an excuse for not allowing proper parliamentary scrutiny”.10 What is really at stake here is no less than the question of division of powers and the constitutional position of the judiciary, the executive and the legislative.

  • 11 In the French Gérard Cornu, Vocabulaire juridique, 11ème de (Paris, Quadrige/PUF, 2016), p. 725, “o (...)
  • 12 Geraldine George (dir.) Glossaire de Droit anglais (Paris, Dalloz, 2019), p. 349.
  • 13 Peter Collin Publishing, Dictionary of Law, second edition, 1995, p. 55.
  • 14 It aimed at amending the original law on such issue, the Justice Act, dating back to 1960.

6Before going further with the analysis, some explanation will be provided for the somehow enigmatic title of this paper. The expression “Contempt of court”11 has two possible meanings. Geraldine George, a former solicitor and judge in England and France, defines this legal concept as: an “act that challenges or denies the authority of a legal representative or that breaches procedural rules”.12 The Peter Collin Dictionary of law, for its part, defines contempt of court” as “being rude or showing lack of respect to a court or Parliament”.13 Under the Contempt of Court Act 198114 one of the key statutes dealing with such an issue, contempt was understood as “tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so”. One of its main purposes was not so much to protect judges but to protect jurors – especially the confidentiality of their deliberations – from undue interference or pressure from the media making them liable for publishing any material likely to undermine the fairness of trials. Thus, the tensions arising from the diverging interests between the judiciary and the press are far from being a new phenomenon. Derek Oulton writing for The Journal of Law and Society in 1994 observed:

  • 15 “Independent of Whom,” Sir Derek Oulton’s review of the book of Robert Stevens entitled The Indepen (...)

One of the most dramatic changes that have taken place over the past thirty years or so has been the increasing freedom felt by newspapers, in particular, to attack judges with a vigour that was formerly quite unknown.15

7The media have indeed magnified politicians’ criticisms towards judges especially at the time of Brexit.

  • 16 Peter Collin Publishing, Dictionary of Law, second edition, 1995, p. 55.

8Today, contempt is mainly understood as an offensive behaviour or action towards judges or Parliament thus as “a conduct which may bring the authority of Parliament into disrepute”.16 A link does exist between the two aforementioned interpretations of contempt which was clearly established in the 1974 Report of the Committee on Contempt of Court. The latter reads:

  • 17 Report of the Committee on Contempt of Court, Cmnd 5794, 1974, paragraph 2 – referred to in Erskine (...)

The power of both Houses to punish members and non-members for disorderly and disrespectful acts has much in common with the authority inherent in the superior courts to prevent or punish conduct which tends to obstruct, prejudice, or abuse them while in the exercise of their responsibility.17

  • 18 Erskine May, op. cit., p. 191.
  • 19 The Independent Review of Administrative law,” CP 407, March 2021, p. 50.

9The explanation lies in their common source as conveyed by the former clerk of Parliament Erskine May: “the origin of the power to punish for contempt is probably to be found in the medieval concept of the English Parliament as primarily a court of justice”.18 Whether it is against the courts or against Parliament, it is in essence a lack of respect not so much against individuals but against what they embody – justice or the authority of the law on the one hand, the democratically elected representatives of the people on the other hand. It is also symptomatic of a lack of trust. As members of the Independent Review of Administrative Law commission wrote in their report: concern was expressed “at the potential willingness of the judiciary to push the boundaries of the separation of powers”.19 So, in both cases, such a behaviour (contempt) can significantly undermine the authority of the institution targeted and eventually affect people’s trust in the very institutions those people under attack represent. The government’s programme of constitutional reform regarding the judiciary (included in its 2019 election manifesto and confirmed in the Queen’s Speech of May 2021) could be highly damaging not only in terms of a further drift towards an all-powerful government but for the future of the UK democracy itself. One might wonder what should the limits be to judicial authority and whether it is the role of the executive to set such boundaries? In his thoughts and recollections on the “business of judging” Judge Bingham noted:

  • 20 Tom Bingham, Selected Essays and Speeches 1985-1999 (Oxford, Oxford University Press, 2011), p. 61.

Any mention of judicial independence must eventually prompt the question: independent of what? The most obvious answer is, of course, independent of government.20

The Judiciary: a long-established, self-confident separate arm of government

10In England and Wales, the Judiciary rests on a subtle balance between constitutional independence and personal self-restraint.

Legal safeguards underpinning judges’ independence

11The English legal culture is based on a long tradition of independence of the Judiciary starting with the Magna Carta associated with the principle of the rule of law or supremacy of the law in its interpretation by 17th century eminent lawyers such as Sir Edward Coke. It was recently successfully put to the test in the two highly sensitive Miller cases mentioned above.21.

12In a country without a codified constitution clearly defining the respective functions of each branch of government, some key Acts of Parliament now identified as “constitutional statutes” – i.e. that cannot be repealed except by an explicit new law introduced for that purpose – offer precious guidance. Judicial independence was traditionally secured by landmark pieces of legislation, above all the Act of Settlement of 1701, “An Act for the further limitation of the Crown and better securing the Rights and Liberties of the Subject”.22 It is also often known for being the Act protecting a Protestant succession to the throne rather than for guaranteeing judicial office quam diu se bene gesserint (during good behaviour) thus protecting judges from arbitrary removal by the King. The 1701 Act however states that “upon the address of both Houses of Parliament it may be lawful to remove them”.23 Commenting upon the very end of this provision, which was then assimilated to a form of impeachment, Professor McIlwain of Harvard underlined that:

  • 24 C.H. McIlwain, “The tenure of English judges,” The American Political Science Review, vol. 7, N2, M (...)

These words of the Act of Settlement confer no power upon the Houses of Parliament which they did not hold before, of interfering with judicial tenure.24

13More recently, the Constitutional Reform Act 2005 for the first time enshrined the rule of law in a statute aimed at establishing a clearer separation of power, between the judiciary and the executive on the one hand, the judiciary, and the legislative on the other hand. Thus, it significantly amended the status of the Lord Chancellor, today primarily a member of the Cabinet at the head of the Justice Department – his full title being the Lord Chancellor and Secretary of State for Justice (currently Dominic Raab, a former lawyer). Lord Brennan, from the House of Lords Select Committee on the Constitution, pointed out:

  • 25 “Oral evidence session with the Lord Chief Justice,” Select Committee on the Constitution, Examinat (...)

One of the few constitutional statutes that we have, the Constitutional Reform Act 2005, specifically deals at its beginning with the independence of the judiciary. Section 1 proclaims the importance of the rule of law. Section 3(1) states that the Lord Chancellor and other Ministers must uphold the independence of the judiciary. Section 3 (6) (a) imposes a specific duty on the Lord Chancellor, the very first words being “the need to protect that independence”.25

  • 26 “The Independent Review of Administrative law,” CP 407, March 2021, p. 13.

14Yet, its main objective was to secure a clearer, more formal, separation of power between the judiciary and the legislative by abolishing the Appellate Committee of the House of Lords as the Highest Court of Appeal of the country in order to replace it with the United Kingdom Supreme Court. It was also a way for the United Kingdom better to comply with the European Convention on Human Rights and Fundamental Freedoms, which was partly drafted by the Scottish lawyer David Maxwell Fyfe, later Lord Kilmuir (article 6 (1) in particular). In addition, judges in England and Wales have traditionally applied a principle of self-restraint including the former Justices in Ordinary or Law Lords of the defunct Appellate Committee of the House of Lords – in the name of the respect of parliamentary sovereignty, a key pillar of the UK constitution with the rule of law. As members of the commission, chaired by Lord Faulks, put it: “the relationship between Parliament and the judiciary is traditionally a supportive one.26

The state of the judiciary, a view from within the judicial profession

15Whereas the general state of the Union between the four nations forming the United Kingdom is one of disunity, division and diversity, the judiciary itself seems, at least at first sight, in a better state in terms of its constitutional position and as far as its self-confidence is concerned.

  • 27 It is the case for the time being but were Wales to be granted the devolution of justice, it would (...)
  • 28 “Oral evidence session with the Lord Chief Justice,” Select Committee on the Constitution, Examinat (...)
  • 29 “Justice in Wales for the People of Wales. Summary report,” The Commission on Justice in Wales Repo (...)

16High professional and ethical standards characterise the judiciary of England and Wales. If diversity exists at all within the judiciary it is not one based on educational grounds even less on gender or race (it is still very much dominated by white men from a fairly privileged background) but rather in terms of territorial diversity. In the United Kingdom, a multi-national Union, the judiciary – or judicial power – includes three different legal systems27 for each of its constituent nations except Wales, which is part of the same legal jurisdiction as England. Under the Act of Union 1707, Scotland was able to retain its own law – a hybrid type of law partly based on a French type of civil law, partly on the English common law – as well as its own courts and tribunals. By contrast, Welsh law, although influenced by three hundred years of Roman rule which helped the country develop its own legal tradition, was soon merged with English Law. Today there are more and more divergences between English law and the law stemming from the Welsh Parliament. Lord Thomas when he gave evidence to the Select Committee on the Constitution in 2017 underlined that “the tiny part of the judiciary for which the Welsh Government are responsible are the Welsh tribunals”.28 Yet to take into account the specificities of Welsh law, the Commission on Justice In Wales over which Lord Thomas presided asked for justice to be devolved to Wales and for the United Kingdom Supreme Court to include a Welsh judge – given that by convention it already has two Scottish judges who can bring in their expertise of Scottish law whenever necessary. In its “long-term vision for the future of justice in Wales,” the report of the Commission on Justice in Wales, made the following recommendation: “the law applicable in Wales should be formally identified as the law of Wales, distinct from the law of England”.29

17Therefore, the law itself – at least since the process of devolution under Tony Blair at the end of the 1990s – reflects the territorial diversity that characterises the country. Yet, what the three legal systems have in common is the United Kingdom Supreme Court, the only national court as such – except for Scottish criminal appeals which are still part of the remit of Scotland’s High Court of Justiciary. Through its final interpretation of the law, it thus brings unity. Lady Hale, the former President of the United Kingdom Supreme Court noted in her memoirs that:

  • 30 Lady Hale, Spider Woman. A Life (London, Penguin Random House, 2021), p. 221.

One of the reasons for having an apex court covering the whole of the United Kingdom is that there is a great deal of law which applies throughout the UK and ought to be interpreted in the same way in England, Scotland, Wales, and Northern Ireland.30

18Besides, unanimity of reasoning characterises the United Kingdom Supreme Court. Lady Hale pointed out that:

  • 31 Ibid, p. 211.

Given that all our cases are by definition arguable, it is surprising that dissent is comparatively rare: over the first ten years of the court’s operation, the unanimity rate was almost 80%.31

19It was certainly the case in the 2019 Miller ruling which, although potentially highly divisive, led to a unanimous ruling (of the eleven justices forming the panel) over the unlawful nature of the prorogation of Parliament that the British Prime Minister had advised the Queen to exercise.

20In addition, the main findings of the 2020 UK Judicial Attitude Survey published on 4th February 2021 show that “97% have a deep commitment to their job”. It also declared that 96% of (salaried) judges in England and Wales “feel that they provide an important service to society”, and that “88% have a strong personal attachment to being a member of the judiciary”. From those results as well as from the testimonies of judges themselves – such as Lady Hale’s memoirs mentioned above – one could conclude that the judiciary is in a fairly strong position especially when compared with other key institutions of the country. This is important in a legal culture based on judicial precedent. Judges have a particularly high responsibility given that they are expected to sign their judgments personally. By contrast, in France, much importance is allocated to the principle of collegiality which entails those judicial decisions are reached collectively by a panel of judges.

  • 32 2020 UK Judicial Attitude Survey “Report of findings covering salaried judges in Scotland”, report (...)

21Yet, the same survey concluded that “over two-thirds of judges (69%) feel that members of the judiciary are respected less by society at large than they were five years ago”.32 It also noted that:

  • 33 Ibid, p. V.

In 2020, the changes judges are most concerned about are new: the loss of respect for the judiciary by the government (94% concerned; 78% extremely concerned) and attacks on the judiciary by the media (85% concerned; 53% extremely concerned).33

  • 34 Ibid, p. V.
  • 35 Jerold L. Waltman, “The courts in England “in Jerold Waltman and Kenneth. M. Holland (eds) The Poli (...)

22Such a hostile environment towards judges tends to deter legally qualified people from joining the profession and also leads judges at the other end to leave earlier than they did in the past. The equivalent survey carried out in Scotland shows that Scottish judges share the malaise of their English (and Welsh) counterparts. Perhaps even more worrying, 76% of them complain about a “loss of judicial independence”.34 Jerold L. Waltman observed that “the British judiciary prides itself on its independence, but this independence has been part of a tacit agreement between judges and politicians”.35 Yet, when this “tacit agreement” is no longer respected by one of the parties, as it is the case today, the independence of justice – a key pillar of democracy – is under threat.

  • 36 The Justice Ministry was only officially set up in 2007.
  • 37 The Independent Review of Administrative law,” CP 407, March 2021, p. 131.

23The judiciary has not been spared by the many legal uncertainties generated by two unprecedented challenges with cumulative effects: Brexit and Covid-19. Those two major upheavals followed more than a decade of austerity and budget cuts in justice.36 Both have significantly altered the balance of power between the three branches of government. In the UK, where the constitution is more than ever under strain, the subtle balance between the main branches of government has been seriously challenged. It has shifted to the detriment of Parliament and possibly of the courts to the benefit of government. Yet, Lord Faulks and his fellow committee members argue that: “a degree of conflicts between the judiciary, the executive and Parliament shows that the checks and balances in our constitution are working well”.37

24The state of the judiciary is not much better in other countries including in France, a traditionally close European partner. Senior members of the French judiciary – Chantal Arens, the President of the Court of Cassation, and François Molins, the Public Prosecutor at the Court of Cassation – conveyed to the President of the Republic the widespread feeling of malaise among French judges. The latter was generated by fierce criticisms – together with well-attended demonstrations – from some police trade unions and senior politicians blaming judges for what they perceived as too much leniency. They also denounced the slow pace of legal proceedings, thus challenging judicial decisions. On 18th October 2021, in Poitiers, President Emmanuel Macron convened what he called “the Estates General of Justice” as the starting point of a nation-wide consultation process (involving judges, law practitioners and also court-users) on the state of the Judiciary in France. The aim was also to collect proposals on how to improve French justice and restore people’s confidence in it. In the statement released by the Elysée on 5th June 2021,38 President Macron underlined his strong attachment to the separation of powers and the independence of justice. Indeed, what is particularly worrying in France is that the attacks came from the police who are in charge of law and order. Police officers and judges are expected to work hand in hand rather than against each other. This is also the case in England and Wales during the pre-trial investigation, when the Crown Prosecution Service (CPS) and the Police play a complementary role exchanging key pieces of evidence in the name of the general public interest.

The weakening of judicial and parliamentary scrutiny: the judiciary in danger

  • 39 The ruling of the divisional court of justice over Brexit followed by the appeal of its decision be (...)

25Successive Conservative governments in the United Kingdom showed contempt for Parliament when they first attempted to bypass the legislature by using executive prerogative powers to trigger article 50 of the TEU without a parliamentary vote. In 2019, they went even further when they took the decision to prorogue Parliament, thus preventing the latter from carrying out its parliamentary work during the Brexit process. Judges were fiercely attacked by The Daily Mail that called them “enemies of the people” after their original ruling over Brexit in 2017.39 It is only very reluctantly, and at a late stage to the dismay of senior members of the Judiciary like Lord Thomas, that, Liz Truss, the Lord Chancellor, intervened to protect judges’ independence. The argument used by the media was that judges being unelected – unlike most American State judges – had no legitimacy to challenge the June 2016 “people’s vote” over Brexit.

  • 40 Robert Buckland was appointed Lord Chancellor and Secretary of State for Justice by Boris Johnson i (...)
  • 41 He could have resigned to be freed from the government’s collective responsibility.
  • 42 Tim Ross, “The justice system is failing too many women,” The New Statesman, 22-28 October 2021, p. (...)
  • 43 Jonathan Ames, Brexiteer lawyer wants to curb power of courts,” The Times, 14 February 2020.

26More recently, the independence of the judiciary was directly challenged by the then Chancellor and Secretary of State for Justice, Robert Buckland,40 QC, appointed by Boris Johnson in 2019, who supported the Prime Minister’s prorogation of Parliament41 as well as breaches of international law over the Northern Ireland protocol in their original draft of the Internal Market Bill (now the UK Internal Market Act 2020 governing the trading relations between the four nations).42 Judges were also fiercely criticised by the current Attorney General (the main legal adviser of the Government) Suella Braverman, QC, who openly expressed her wish for judges’ judicial review power to be curbed, denouncing its use by the judiciary as political. She argued that “the political has been captured by the legal”.43

  • 44 The Conservative and Unionist Party Manifesto 2019, “Get Brexit done”, p. 48.

27This brief overview of some of the verbal and written abuse against judges shows how challenging they were in terms of judges’ integrity. The international symposium held in Lyon in October 2021 under the aegis of the CRECIB focused on the key issue of the state of the Union. In this paper, the main theme is not so much the integrity of the Union of the four nations as such but that of the judiciary. Yet the two are closely linked since the independence of justice is a pillar of the Union and, beyond of British democracy. The impartiality of judges – a key requirement under article 6 (1) of the European Convention on Human Rights as previously mentioned – was also seriously questioned by some of the government’s constitutional reforms, aiming at restoring the balance of power between the executive, the legislative and the courts”.44

“Moderating Judicial Review” - “a priority for the government”

28The objectives and priorities of the Conservative government which emerged from the 2019 General Election regarding constitutional change are first to be found in its 2019 Manifesto entitled “Get Brexit done” mainly from pages 47 to 51 under the headline “protect our democracy”. The 2019 Conservative manifesto clearly indicates the intention of the party to alter the UK Constitution – or at least review some constitutional arrangements. It reads:

  • 45 Ibid, p. 48.

After Brexit we also need to look at the broader aspects of our constitution the relationship between the Government, Parliament, and the Courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people.45

  • 46 Ibid, p. 51.
  • 47 “A New Magna Carta?” House of Commons Political and Constitutional Reform Committee, Second Report (...)
  • 48 “The UK Constitution, A summary, with options for reform,” House of Commons Political and Constitut (...)
  • 49 “A New Magna Carta?” House of Commons Political and Constitutional Reform Committee, Second Report (...)
  • 50 House of Commons Parliamentary Debates (Hansard), vol. 669, No10, Wednesday 15 January 2020, cl. 10 (...)
  • 51 Ibid, Hansard, vol. 669, No10, Wednesday 15 January 2020, cl. 1019.

29To look at the broader aspects of the Constitution,” the government originally indicated that it would set up “a Constitution, Democracy and Rights Commission” – without saying anything about either its composition or its remit except that its official objective would be “to restore trust” in the British institutions.46 Such a commission is neither a bad proposal nor a revolutionary one. Indeed, the former Political and Constitutional Reform Committee of the House of Commons – chaired by the Labour MP Graham Allen – worked hand in hand with the King’s College team of Professor Robert Blackburn, a constitutional lawyer, in London, to review the British Constitution and put forward a series of options for reform.47 It proposed “a Commission for Democracy which shall keep under review the operation of the Constitution48 – though insisting that “no minister shall be a member of the Commission”.49 The timing, scope, and terms of reference of the Constitution, Democracy and Rights Commission were for a long time not specified. During the Prime Minister’s Questions session of 15th January 2020, Prime Minister – Boris Johnson – was asked by the Conservative MP for New Forest West, Sir Desmond Swayne, what plans he had “to reform the relationship between the legislature, the executive and the judiciary” and what would be a “top priority”.50 The Prime Minister, after making some general comments about the setting-up of the constitution, democracy, and rights commission, mentioned judicial review and the need to “ensure that it is not abused to conduct politics by another means or create needless delays51 directly echoing the 2019 Conservative manifesto.

  • 52 Francis Elliott and Jonathan Ames, “Courts are not for politics by other means, warns Prime Ministe (...)

30Senior figures of the legal profession have already expressed their concern regarding such a proposal. They fear it would seriously undermine judges’ check on the lawfulness of the acts and decisions of the executive. Thus, the President of the Law Society, Simon Davis pointed out that “judicial review was a vital part of the checks and balances necessary to protect people from powerful institutions and underpins the rule of law.” The Chairwoman of the Bar Council, Amanda Pinto, QC, also argued that “when a government seeks to limit judicial review, alarm bells start ringing because it suggests that it does not wish to be properly held to account and effectively puts it above the law”.52 Nevertheless, the last Queen’s speech delivered on 11th May 2021 in the context of the Covid-19 pandemic restated the government’s following commitment: to “strengthen and renew democracy and the constitution. Legislation will be introduced to ensure the integrity of elections, protect freedom of speech and restore the balance of power between the executive, legislative and the courts.” A Judicial Review and Courts Bill was introduced in the House of Commons in September 2021 following the recommendations of the Independent Review of Administrative Law commission.

The main findings of the Independent Review of Administrative Law (IRAL)

  • 53 The commission was composed of six members altogether – three senior members of the legal professio (...)
  • 54 David Lammy, “A Panel of Preconceptions,” “the review of judicial review” will enhance the governme (...)

31One of the first steps of the government concerning constitutional reform was to set up an Independent Review of Administrative Law commission53 under the chairmanship of Lord Faulks, QC. Even before the commission started to collect evidence, its very independence was questioned. Thus, David Lammy, the shadow Lord Chancellor and shadow Secretary of State for Justice, pointed out that Lord Faulks “was very vocal in his criticism of the judiciary, in the aftermath of the Supreme Court’s 2019 judgment declaring the decision to prorogue Parliament unlawful”.54 Besides, the legal experts of the commission themselves confessed that:

  • 55 “The Independent Review of Administrative law,” CP 407, March 2021, p. 11.

We were well aware that our review had a political dimension. IRAL was in part a response from the government to the Supreme Court’s decisions in the two Brexit cases.55

  • 56 Ibid, p11.
  • 57 R (on the application of Cart v. The Upper Tribunal [2021] UKSC 28.

32The main terms of reference of the Independent Review of Administrative Law set up in July 2020 were to review how “the legitimate interest in the citizen being able to challenge the lawfulness of executive action through the courts can be properly balanced with the role of the executive to govern effectively under the law”.56 So, one might wonder whether the objective was to merely introduce procedural and/or technical changes to judicial review or whether the government aimed at a more substantial reform likely to alter the very nature of judicial review? In the end, two reforms to substantive law were recommended by the IRAL panel – that would be later included by the government in its new Bill on Judicial Review. One was the highly controversial removal of Cart57 judicial reviews – named after a ruling of the United Kingdom Supreme Court dating back to 2011 regarding the jurisdiction of the Upper Tribunal – while the other one was the introduction of suspended quashing orders. Procedural reform would come at a later stage.

  • 58 The Independent Review of Administrative law,” CP 407, March 2021, p. 132.
  • 59 Ibid, p. 132.

33Yet, some of the key conclusions of the panel were certainly not what the government expected. Despite the doubts originally expressed about the independence of the commission from the government, the panel of Lord Faulks displayed much autonomy when they concluded that: “the independence of our judiciary and the high reputation in which it is held internationally should cause the government to think long and hard before seeking to curtail its powers”.58 The very end of their report is particularly vocal as well as openly supportive of judges. It reads: “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 is undoubtedly due when it exercises these powers.”59

  • 60 “Judicial Review Reform Consultation. The Government Response,” London: Ministry of Justice, CP 477 (...)

34In July 2021, the government issued its official response to the report of the Independent Review of Administrative Law, via the Ministry of Justice under the title “Judicial Review Reform Consultation”.60

The Government response: Judicial Review Reform Consultation

  • 61 Ibid, p. 3.
  • 62 Ibid, p. 3.
  • 63 Ibid, p. 3.

35As it is recalled in the report issued by the government in July 2021 in the wake of the findings of the Independent Review of Administrative Law panel, a consultation process was launched by the Government to examine “the purpose of judicial review, its evolution and the reforms that might be needed” and beyond to “restore the place of justice at the heart of our society”.61 The government immediately indicated that there “was a case for going further” than the recommendations of the IRAL on the grounds of “good administration” and that this would take the form of a new law. Among some of the main changes to judicial review the government proposed “removing Cart judicial reviews by which certain decisions of the Upper Tribunal are reviewable by the supervisory courts”.62 This would leave the High Court of Justice with only “residual review jurisdiction.” The ability of the Upper Tribunal to refuse permission to appeal from the First Tier Tribunal would no longer be checked. The second meaningful change would be to “allow the court to suspend, for a specified time, the effect of an order quashing a decision or action63 and to limit its retrospective effect. This would introduce a form of transitional period during which an administrative decision or action would continue to produce effects to the benefit of public authorities. To conclude on this point, by suspending a quashing order even only for a specified time and by limiting its retrospective effect, judicial review would lose some of its power.

36In addition, the government in its official response to the findings of the IRAL has clearly said it would not consider proportionality, defined as examining “whether the decision or action is a proportionate way of achieving a policy aim as a general ground of judicial review”.64 It fears that “the move from rationality to proportionality” would extend the scope of judicial review to “the merits of the decision” rather than “looking at how the decision was made”.65 This would give judges extensive supervisory powers. The principle of proportionality – together with the principle of subsidiarity – is a key principle at the basis of the European Union. Under article 5 of the TEU “the use of Union competences is governed by the principles of subsidiarity and proportionality”.66 They are a way of making sure the EU would not exceed its powers. Such a principle was not originally part of the English common law. Yet, legal experts like Professor Jowell, the former Head of the Bingham Centre for the Rule of Law defined the rule of law as:

  • 67 Sir Jeffrey Jowell & Colm O’Cinneide (Eds), The Changing Constitution (Oxford, Oxford University Pr (...)

A substantive principle of administrative law that includes proportionality, legal certainty and fundamental Human Rights” and Judicial Review “as a means of supervising administrative discretion.”67

  • 68 “Judicial Review Reform Consultation. The Government Response,” London: Ministry of Justice, CP 477 (...)
  • 69 Paolo Sandro, “Do you really mean it? Ouster clauses, Judicial Review Reform and the UK Constitutio (...)

37Beyond the controversial aspect of the government’s proposed changes to judicial review, it is the reasoning underpinning them which is questionable as well as the way it considers the relations between the three main branches of government. It claims that “the role of the courts in judicial review is to be the servant of Parliament68 establishing a form of hierarchy between the legislature and the judiciary. This particular interpretation of the doctrine of parliamentary sovereignty does not acknowledge the fact that judges if anything are “the servants” of the law – or at the service of justice. Nobody is above the law. In a fundamentally distinct perspective, Paolo Sandro, a Lecturer in Law at the University of Salford argued that “Parliament has generally left the development of the grounds and principles of Judicial Review to the courts”.69 Parliament and the courts therefore play a complementary role, respectively holding the government to account for the former, checking that it acts within the law, for the latter.

  • 70 “Judicial Review Reform Consultation. The Government Response,” Ministry of Justice, CP 477, July 2 (...)

38To conclude on this point, the government’s proposals to amend judicial review appear more driven by “executive discretion” rather than the will to reinforce “judicial discretion” in spite of what the government officially claimed in its Judicial Review Reform Consultation. Indeed, by going further than the recommendations of the IRAL, the government’s proposed changes would both limit the use of judicial review and reduce its scope. Some criticisms from claimant groups and non-governmental organisations are in fact mentioned in the government’s report following its consultation process, such as respondents who “pointed out that overturning Cart would primarily affect immigration and asylum cases. They argued that the potential Human Rights consequences might be severe under the European Convention on Human Rights and the Refugee Convention”.70 To put the proposals of reform of judicial review into perspective, one of the reasons for Britain to leave the European Union was no longer to be bound by the principle of free circulation of people and to regain sovereignty over its own borders through controlled immigration. Thus, limiting the use and scope of judicial review in immigration cases might be interpreted as being part of the same logic that underpins the country’s immigration policy, in other words a politically motivated reform rather than one dictated by objective procedural considerations. The proposals to reform judicial review might in the end undermine the entire system of checks and balances regarding administrative decisions. The final stage of the government’s consultation process over judicial review was to incorporate some of the recommendations of the IRAL and its own proposals into a new law.

Legislating to reform Judicial Review

  • 71 Aubrey Allegretti, “Ex-minister says judicial review plan is assault on legal system,” The Guardian(...)
  • 72 R (on the application of Cart) v. The Upper Tribunal [2011] UKSC 28.
  • 73 Ouster clauses are provisions in legislation which exclude the jurisdiction of the courts depriving (...)
  • 74 Mark Elliott, “Through the Looking-Glass? Ouster clauses, Statutory Interpretation and the British (...)

39In the wake of the 2021 Queen’s Speech, the Judicial Review and Courts Bill, sponsored by the then Lord Chancellor Robert Buckland, was introduced by the government in the House of Commons on 16th September 2021. By 31st October 2021 it had completed its second reading in the Lower House. Some of its members like David Davis, the Conservative MP for Haltemprice and Howden and Secretary of State for Exiting the European Union (from 2016 to 2018) in office under the first Miller case in 2017 – was opposed to the Bill denouncing it as “an assault against the legal system”.71 He was particularly critical of two provisions regarding respectively the abolition of and the use of ouster clauses.72 Mark Elliott, professor of Public Law and Chair of the Faculty of Law at the university of Cambridge describes “ouster (or “privative” or preclusive”) clauses” as “an extreme form of control upon the judiciary’s interpretive role,” or a form of improper “legislative intervention in the judicial-interpretive space.” Consequently, he too considers ouster clauses73 as “a full-frontal assault upon the judicial, including the interpretative function”.74

  • 75 “A Bill to make provision about the provision that may be made by and the effects of, quashing orde (...)
  • 76 www.legislation.gov.uk (accessed on 15/11/2021).
  • 77 “The Independent Review of Administrative law,” CP 407, March 2021, p. 8.
  • 78 As it is stated in The Independent Review of Administrative Law, “judicial review is ‘devolved’ in (...)
  • 79 The Independent Review of Administrative law,” CP 407, March 2021, p. 113.

40The long title of the bill75 confirmed the government’s intention to curtail judicial review as it partly aimed to make provision restricting judicial review of certain decisions of the Upper Tribunal.”76 More precisely, Part 1 of the Bill devoted to judicial review dealt with “the exclusion of review of Upper Tribunal’s permission to appeal decision”. In the English Common Law, unlike civil law countries like France, there is no automatic right of appeal. The Upper Tribunal hears immigration and asylum cases – a particular sensitive legal area – which according to the findings of the IRAL “are responsible for up to 90% of judicial review applications”.77 One of the threats with the proposed reforms about the judiciary would be to make it even more difficult to lodge an appeal. Members of the IRAL commission have raised this point regarding the use of judicial review in Scotland78 noting that “in the absence of a statutory right of appeal, it is the only means of obtaining an authoritative ruling on the legality of administrative action.”79

41Yet, the government it seems, was determined to go even further by challenging the Human Rights Act 1998, a key pillar of the protection of Human Rights in the United Kingdom.

Updating the Human Rights Act 1998

  • 80 www.gov.uk (accessed on 24/10/2021).
  • 81 Ibid., p. 129.

42The Government set up an Independent Human Rights Act Review (IHRAR) in December 2020 chaired by Sir Peter Gross, a former judge of the 2009 Special Immigration Appeals Commission, “to examine the framework of the Human Rights Act, how it is operating in practice and whether any change is required”.80 As stated in the report of the IRAL, the review will consider, among other things, “the impact of the HRA on the relationship between the judiciary, executive and Parliament, and whether domestic courts are being unduly drawn into areas of policy”.81

  • 82 John Allison, The English Historical Constitution: Continuity, Change and European Effects (Cambrid (...)

43The Human Rights Act (HRA) 1998 was described in its long title as “an Act to give further effect to rights and freedoms guaranteed under the ECHR”. After some initial reluctance, British ministers accepted during the passage of the Human Rights Bill through Parliament that part of the ECHR would be incorporated into English domestic law. Their mixed reactions can be partly explained by the fact that “the European Convention is one of “those declarations or definitions of rights so dear to foreign constitutionalists and unfamiliar in the common law tradition”,82 as John Allison explained. They also feared that it would undermine the principle of parliamentary sovereignty. The HRA imposes a positive obligation on public bodies – except Parliament – to uphold the fundamental rights set out in the European Convention. It also requires courts to interpret legislation, as far as possible, in a manner consistent with Convention rights. The HRA 1998 is therefore based on a subtle balance between the respect of parliamentary sovereignty and a better protection of Human Rights. In addition, the HRA gives judges the authority to issue a declaration of incompatibility between parts of or a whole national statute and the European Convention, but they have no power to strike down the Act of Parliament at stake. Besides, most of the Convention rights were already part of the English common law. What the HRA 1998 did was to provide a single legislative source of basic rights for the whole United Kingdom facilitating judges’ interpretive task.

44The proposal to “update the Human Rights Act 1998” is not new. Some attempts had already been made by previous Conservative governments to replace this critical piece of legislation introduced by Tony Blair’s Labour government regarding the protection of Human Rights by a British Bill of Rights. An Independent Commission on a UK Bill of Rights to investigate the case for a UK Bill of Rights was therefore set up on 18th March 2011 to work on its future content identifying rights, mainly economic and social, that were not covered by the European Convention such as the right to education, access to health care or – in a country that held the COP 26 in Glasgow in November 2021 – the right to a clean and healthy environment. France did so in 2005 by incorporating its Environment Charter into the preamble of the 1958 Constitution. In the UK, the Conservatives under the leadership of David Cameron in their 2015 Party Manifesto promised that they would:

  • 83 The 2015 Conservative manifesto, “Strong leadership, a clear economic plan, a brighter, more secure (...)

Scrap the Human Rights Act and curtail the role of the European Court of Human Rights, so that foreign criminals can be more easily deported from Britain.83

45It is probable that a form of Euroscepticism partly motivated the call for a British Bill of Rights, aimed at limiting the impact of the European Court of Human Rights on the English common law. Some commentators hostile to the Strasbourg Court hoped that repealing the HRA would reduce the level of involvement by the European Court of Human Rights in the UK. Among them was the former Lord Chancellor and Secretary of State for Justice, Chris Grayling who made the following statement as part of the evidence he gave before the Joint Committee on Human Rights on 12th February 2013:

Hardly a week goes past without a new judgment that extends the jurisdiction, the jurisprudence and the rights encompassed in the jurisprudence of the European Court of Human Rights. As Lord Chancellor, I defend the right of judges in Strasbourg to take the decisions that they do. It is also a matter for the UK in the future to decide the degree to which it wants to continue to accept the level of jurisprudence and the level of involvement by the European Court in this country.84

46The devolved governments, however, were opposed to the repeal of the Human Rights Act 1998, the backbone of the devolution process.

47In addition, the current pandemic has accelerated the drift towards an all-powerful executive undermining civil liberties, given the exceptional additional powers granted to the executive in the name of the health emergency notably under the Coronavirus Act 2020. Covid-19 has also had an important impact on courts increasing existing delays and the backlog of cases. The use of remote justice during the lockdowns has also revived the controversy about the future of jury trial which although only used in England and Wales for the most serious criminal cases is associated with the fundamental right of being judged by one’s own peers associated with the Magna Carta.

Conclusion

  • 85 Jonathan Sumption, Law in a Time of Crisis (London, Profile Books, 2021).

48There is most certainly a need to rethink the relations between Parliament, the government, and the courts but not in the way the government intends. The objective would be to better control the executive by strengthening parliamentary scrutiny – or at least making it more efficient – and enabling judges to use judicial review when the law and people’s rights are at risk rather than trying to reduce its scope. Jonathan Sumption, a former judge of the UKSC in his book Law in a time of Crisis85 is very critical of the government’s proposed constitutional reform.

  • 86 The Conservative and Unionist Party Manifesto 2019, “Get Brexit done”, p. 48
  • 87 Alexandra Sinclair, Joe Tomlinson, “A legislative Horror Show,” “Abused of delegated legislation ma (...)

49In its 2019 Manifesto the government announced that it would reviewthe functioning of the royal prerogative”.86 The latter has been at the core of the legal and political disputes opposing parliament and government – as illustrated by the two Miller cases. It is undeniably an important part of the constitution which needs to be clarified. Currently, it is an area which very much escapes parliamentary scrutiny and even understanding. Brexit further aggravated the extensive use of the royal prerogative by the government to bypass any opposition of parliament – to force through Brexit in the name of the “will of the people” but without seeking parliamentary approval. The Royal Prerogative needs to be better regulated to better comply with the key constitutional principles of parliamentary sovereignty and the rule of law, yet the government’s intentions are not clear, even if its systematic attempt to oppose parliament to the people might suggest that this change would lead to a rather different goal. There is an urgent need to better scrutinise the extensive use of delegated legislation by the government and beyond, to reinforce proper checks over the executive. As the experts involved in the Public Law project argued: the growing case for reform of our delegated legislative system is becoming overwhelming, particularly given how Brexit has shown the system to be creaking under pressure.”87

  • 88 Elizabeth Gibson-Morgan (dir.), Fighting for Justice: Common Law and Civil Law Judges; Threats and (...)

50If judges in England and Wales are not to face the same threats as their Polish counterparts or Hungarian colleagues, the United Kingdom is already on a dangerous slope with the decline of respect towards judges, judges’ decisions, and the process of judicial review. Judges, however, are determined “to fight for Justice88 as Lady Hale, popularly known as “spider woman,” did when she caught Boris Johnson in the web of the law.

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Bibliography

A (FC) and others (FC) v. Secretary of State for the Home Department [2004] UKHL 56.

Allegretti, Aubrey, “Ex-minister says judicial review plan is assault on legal system,” The Guardian, 26 October 2021.

Allison, John, The English Historical Constitution: Continuity, Change and European Effects (Cambridge, Cambridge University Press, 2007).

Ames, Jonathan, “Brexiteer lawyer wants to curb power of courts,” The Times, 14 Feb. 2020.

Bingham, Tom, Selected Essays and Speeches 1985-1999 (Oxford, Oxford University Press, 2011).

Bingham, Tom, The Business of Judging. Selected Essays and Speeches 1985-1999 (Oxford, Oxford University Press, 2011).

Elliott, Francis and Ames, Jonathan, “Courts are not for politics by other means, warns Prime Minister,” The Times, 16 January 2020.

Erskine May, Thomas, Treatise on the Law, Privileges, Procedures and Use of Parliament (London, Lexis Nexis, 24th ed, 2011).

George, Géraldine, (dir.) Glossaire de Droit anglais (Paris, Dalloz, 2019).

Gibson-Morgan, Elizabeth (dir.), Fighting for Justice: Common Law and Civil Law Judges; Threats and Challenges (Cardiff, University of Wales Press, 2021).

Hale, Brenda (Lady Hale), Spider Woman. A Life (London, The Bodley Head, 2021).

House of Commons Parliamentary Debates, Hansard, 15 January 2020, vol. 669.

House of Commons Political and Constitutional Reform Committee, “A New Magna Carta?” Second Report of Session 2014-15, 10 July 2014, HC 463.

Jowell, Jeffrey and O’Cinneide, Colm (Eds), The Changing Constitution (Oxford, Oxford University Press, July 2019).

Lammy, David, “A Panel of Preconceptions,” “the review of judicial review” will enhance the government’s power and diminish yours,” Prospect, January/February 2021.

Ministry of Justice, “Judicial Review Reform Consultation. The Government Response,” CP 477, July 2021.

Queen’s Speech, May 2021.

R (Miller and another) v. Secretary of State for Exiting the European Union [2017] UKSC 5.

R (Miller) v. Prime Minister [2019] UKSC 41.

R (on the application of Cart) v. The Upper Tribunal [2011] UKSC 28.

Ross, Tim, “The justice system is failing too many women,” The New Statesman, pp. 22-28 October 2021.

Sinclair, Alexandra and Tomlinson, Joe, “A legislative Horror Show,” “Abused of delegated legislation makes a mockery of law making,” Prospect, January/February 202.1

Sumption, Jonathan, Law in a Time of Crisis (London, Profile Books, 2021).

The Commission on Justice in Wales Report, “Justice in Wales for the People of Wales,” Cardiff, October 2019.

The Independent Review of Administrative law, Her Majesty’s Stationery Office, CP 407, March 2021.

Thomas, Cherry, “Report of findings covering salaried judges in Scotland,” 2020 UK Judicial Attitude Survey, UCL Judicial Institute, 25 February 2021.

Waltman, Jerold, and Holland, Kenneth. M. (eds) The Political Role of Law Courts in Modern Democracies (London, Palgrave Macmillan, 1988).

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Notes

1 Ally of the People,” Lord Thomas interviewed by Alex Dean, Prospect, January/February 2021, p. 14.

2 Ibid, p. 14.

3 R (Miller and another) v. Secretary of State for Exiting the European Union [2017] UKSC 5.

4 R (Miller) v. Prime Minister [2019] UKSC 41.

5 Lady Hale, Spider Woman. A Life (London, Penguin Random House, 2021), p. 210.

6 Rebecca Moosavian, Clive Walker and Andrew Blick “The Untapped potential of proportionality in a Pandemic” in Aurélien Antoine, Andrew Blick, Geraldine George, and Elizabeth Gibson-Morgan, Constitutional, political, social and health threats and challenges in France and the UK, Mare & Marin – due to be published in 2022.

7 Alex Dean, “A verdict never in doubt,” Prospect, January/February 2021, p. 1.

8 A (FC) and others (FC) v. Secretary of State for the Home Department, 16 December 2004, [2004] UKHL 56.

9 www.echr.coe.int (accessed on 24/10/2021).

10 “Ally of the People,” John Thomas interviewed by Alex Dean, Prospect – special issue on the Rule of Law – January/February 2021, p14. [Lord Thomas has joined the House of Lords as a crossbencher].

11 In the French Gérard Cornu, Vocabulaire juridique, 11ème de (Paris, Quadrige/PUF, 2016), p. 725, “outrage” is defined as “manifestation de mépris attentoire à la dignité de sa fonction”.

12 Geraldine George (dir.) Glossaire de Droit anglais (Paris, Dalloz, 2019), p. 349.

13 Peter Collin Publishing, Dictionary of Law, second edition, 1995, p. 55.

14 It aimed at amending the original law on such issue, the Justice Act, dating back to 1960.

15 “Independent of Whom,” Sir Derek Oulton’s review of the book of Robert Stevens entitled The Independence of the Judiciary: The View from the Lord Chancellor’s Office (Oxford, Clarendon Press, 1993), Journal of Law and Society, vol. 21, N4, December 1994, p. 569.

16 Peter Collin Publishing, Dictionary of Law, second edition, 1995, p. 55.

17 Report of the Committee on Contempt of Court, Cmnd 5794, 1974, paragraph 2 – referred to in Erskine May’s Treatise on the Law, Privileges, Procedures and Use of Parliament (London, Lexis Nexis, 24th ed, 2011), p. 191.

18 Erskine May, op. cit., p. 191.

19 The Independent Review of Administrative law,” CP 407, March 2021, p. 50.

20 Tom Bingham, Selected Essays and Speeches 1985-1999 (Oxford, Oxford University Press, 2011), p. 61.

21 www.parliament.uk (accessed on 24/10/2021).

22 www.parliament.uk (accessed on 24/10/2021).

23 www.parliament.uk (accessed on 24/10/2021).

24 C.H. McIlwain, “The tenure of English judges,” The American Political Science Review, vol. 7, N2, May 2013, (pp. 217-229), p. 226.

25 “Oral evidence session with the Lord Chief Justice,” Select Committee on the Constitution, Examination of Witness Wednesday 22 March 2017, p. 5.

26 “The Independent Review of Administrative law,” CP 407, March 2021, p. 13.

27 It is the case for the time being but were Wales to be granted the devolution of justice, it would have its own legal system.

28 “Oral evidence session with the Lord Chief Justice,” Select Committee on the Constitution, Examination of Witness Wednesday 22 March 2017, p. 7.

29 “Justice in Wales for the People of Wales. Summary report,” The Commission on Justice in Wales Report, 24 October 2019, p. 8.

30 Lady Hale, Spider Woman. A Life (London, Penguin Random House, 2021), p. 221.

31 Ibid, p. 211.

32 2020 UK Judicial Attitude Survey “Report of findings covering salaried judges in Scotland”, report by Cherry Thomas, QC, UCL Judicial Institute, 25 February 2021, p. III.

33 Ibid, p. V.

34 Ibid, p. V.

35 Jerold L. Waltman, “The courts in England “in Jerold Waltman and Kenneth. M. Holland (eds) The Political Role of Law Courts in Modern Democracies, Palgrave Macmillan, 1988, p. 117.

36 The Justice Ministry was only officially set up in 2007.

37 The Independent Review of Administrative law,” CP 407, March 2021, p. 131.

38 www.elysee.fr (accessed on 16/09/2021).

39 The ruling of the divisional court of justice over Brexit followed by the appeal of its decision before the United Kingdom Supreme Court in 2017 – Miller v. Secretary of State for Exiting the European Union – will not be dealt with in detail in the current paper as it has already been widely covered including by some eminent legal commentators.

40 Robert Buckland was appointed Lord Chancellor and Secretary of State for Justice by Boris Johnson in 2019 then was removed from office by the latter when he decided to reshuffle his Cabinet in September 2021.

41 He could have resigned to be freed from the government’s collective responsibility.

42 Tim Ross, “The justice system is failing too many women,” The New Statesman, 22-28 October 2021, p. 17.

43 Jonathan Ames, Brexiteer lawyer wants to curb power of courts,” The Times, 14 February 2020.

44 The Conservative and Unionist Party Manifesto 2019, “Get Brexit done”, p. 48.

45 Ibid, p. 48.

46 Ibid, p. 51.

47 “A New Magna Carta?” House of Commons Political and Constitutional Reform Committee, Second Report of Session 2014-15, HC 463, 10 July 2014.

48 “The UK Constitution, A summary, with options for reform,” House of Commons Political and Constitutional Reform Committee, March 2015, p. 6.

49 “A New Magna Carta?” House of Commons Political and Constitutional Reform Committee, Second Report of Session 2014-15, HC 463, 10 July 2014, p. 354.

50 House of Commons Parliamentary Debates (Hansard), vol. 669, No10, Wednesday 15 January 2020, cl. 1019.

51 Ibid, Hansard, vol. 669, No10, Wednesday 15 January 2020, cl. 1019.

52 Francis Elliott and Jonathan Ames, “Courts are not for politics by other means, warns Prime Minister,” The Times, Thursday, January 16, 2020.

53 The commission was composed of six members altogether – three senior members of the legal profession, Lord Faulks, Professor Carol Harlow, QC; Vikram Sachdeva, QC; as well as Professor Alan Page; Celina Colquhoun and Nicholas J. McBride.

54 David Lammy, “A Panel of Preconceptions,” “the review of judicial review” will enhance the government’s power and diminish yours,” Prospect, January/February 2021, p. 3.

55 “The Independent Review of Administrative law,” CP 407, March 2021, p. 11.

56 Ibid, p11.

57 R (on the application of Cart v. The Upper Tribunal [2021] UKSC 28.

58 The Independent Review of Administrative law,” CP 407, March 2021, p. 132.

59 Ibid, p. 132.

60 “Judicial Review Reform Consultation. The Government Response,” London: Ministry of Justice, CP 477, July 2021, p. 3.

61 Ibid, p. 3.

62 Ibid, p. 3.

63 Ibid, p. 3.

64 Ibid, p. 3.

65 Ibid, p. 3.

66 www.legislation.gov.uk (accessed on 16/09/2021).

67 Sir Jeffrey Jowell & Colm O’Cinneide (Eds), The Changing Constitution (Oxford, Oxford University Press, July 2019), p. 19.

68 “Judicial Review Reform Consultation. The Government Response,” London: Ministry of Justice, CP 477, July 2021, p. 9.

69 Paolo Sandro, “Do you really mean it? Ouster clauses, Judicial Review Reform and the UK Constitutionalism paradox,” UK Const. L. Blog, 1 June 2021 www.ukconstituionallaw.org (accessed on 25 October 2021).

70 “Judicial Review Reform Consultation. The Government Response,” Ministry of Justice, CP 477, July 2021, p. 13.

71 Aubrey Allegretti, “Ex-minister says judicial review plan is assault on legal system,” The Guardian, 26 October 2021.

72 R (on the application of Cart) v. The Upper Tribunal [2011] UKSC 28.

73 Ouster clauses are provisions in legislation which exclude the jurisdiction of the courts depriving them of the power to review the validity of administrative action.

74 Mark Elliott, “Through the Looking-Glass? Ouster clauses, Statutory Interpretation and the British Constitution,” University of Cambridge, Faculty of Law, Research Paper N4, 2018, p. 4. Elliott was adviser to the Lords Constitution Committee.

75 “A Bill to make provision about the provision that may be made by and the effects of, quashing orders; to make provision restricting judicial review of certain decisions of the Upper Tribunal; to make provision about the use of written and electronic procedures in courts and tribunals; to make other provision about procedure in, and the organisation of, courts and tribunals; and for connected purposes”.

76 www.legislation.gov.uk (accessed on 15/11/2021).

77 “The Independent Review of Administrative law,” CP 407, March 2021, p. 8.

78 As it is stated in The Independent Review of Administrative Law, “judicial review is ‘devolved’ in both Scotland and Northern Ireland, by reason of not being reserved or excepted, but not in Wales in the absence of its own jurisdiction,” IRAL, March 2021, p. 127,

79 The Independent Review of Administrative law,” CP 407, March 2021, p. 113.

80 www.gov.uk (accessed on 24/10/2021).

81 Ibid., p. 129.

82 John Allison, The English Historical Constitution: Continuity, Change and European Effects (Cambridge, Cambridge University Press, 2007).

83 The 2015 Conservative manifesto, “Strong leadership, a clear economic plan, a brighter, more secure future”, p. 60.

84 www.parliament.uk (accessed on 24/10/2021).

85 Jonathan Sumption, Law in a Time of Crisis (London, Profile Books, 2021).

86 The Conservative and Unionist Party Manifesto 2019, “Get Brexit done”, p. 48

87 Alexandra Sinclair, Joe Tomlinson, “A legislative Horror Show,” “Abused of delegated legislation makes a mockery of law making,” Prospect, January/February 2021, p16 – Alexandra Sinclair and Joe Tomlinson worked on Public Law Project’s new report “Plus ça change? Brexit and the flaws of the delegated legislation system.” It was published on 13 October 2020. For more information see www.publiclawproject.org.uk

88 Elizabeth Gibson-Morgan (dir.), Fighting for Justice: Common Law and Civil Law Judges; Threats and Challenges (Cardiff, University of Wales Press, 2021).

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References

Electronic reference

Elizabeth Gibson-Morgan, “State of the Judiciary: In Contempt of Judges”Revue Française de Civilisation Britannique [Online], XXVII-2 | 2022, Online since 15 June 2022, connection on 27 September 2022. URL: http://journals.openedition.org/rfcb/9140; DOI: https://doi.org/10.4000/rfcb.9140

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About the author

Elizabeth Gibson-Morgan

Université de Poitiers, MIMMOC (UR 15 072)

Elizabeth Gibson-Morgan: Professor of British Studies and Law, University of Poitiers; Visiting Senior Research Fellow in Constitutional Law, King’s College, London. Her current research is on Brexit and post-Brexit UK, devolution, the House of Lords, parliamentary procedure, the UK Supreme Court, and constitutional change. She is the author of Constitutional Reform in Britain and France: From Human Rights to Brexit (Cardiff: University of Wales Press, 2017). She edited a book on legal matters in June 2021 – Fighting for Justice: Common Law and Civil Law Judges, Threats and Challenges (Cardiff: University of Wales Press, 2021).

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Copyright

CC BY-NC-ND 4.0

Creative Commons - Attribution-NonCommercial-NoDerivatives 4.0 International - CC BY-NC-ND 4.0

https://creativecommons.org/licenses/by-nc-nd/4.0/

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