On Law

Redefining the rule of law

How much will MPs allow the Lord Chancellor to “rebalance” the constitution?

Joshua Rozenberg

This article is taken from the August/September 2021 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issue for just £10.

There can’t be many votes in constitutional reform. And yet the lord chancellor, Robert Buckland, wants to rebalance the constitution in three major areas. What’s going on?

As secretary of state for justice, Buckland has introduced a judicial review bill in the Commons — which will be debated in the autumn. Writing here in March, I dismissed the government’s proposals as a solution without a problem.

Buckland has now responded to those of us who argued that interfering with this important check on the powers of public authorities would be, in his words, “somehow a waste of energy”.

Parliament, the government and the judiciary had a “clear responsibility as custodians of our constitution to make [judicial review] work as well as possible for as much of the time as possible”, he said in June. Judges needed to be “cautious in their decision-making and to ensure that their judgments properly reflect the intent of our elected parliament”.

I don’t think the judges would disagree. And they are unlikely to oppose the two provisions of Buckland’s bill that have already been announced. One of these would overturn the Cart judgment — a decision by the Supreme Court in 2011 that allowed unsuccessful claimants in asylum and immigration cases a third chance to challenge the Home Office. The other proposal would permit flexible remedies in cases where a decision-maker had acted unlawfully.

At present, the courts reckon that a decision was either valid or invalid. If a minister, local authority or other public body had no power to take the decision, it must have been void from the outset. So the courts will quash it.

The new bill would give judges the power to suspend a quashing order for a limited period. That would give the public authority time to put things right. In the example given by the government, a large infrastructure project would not face significant delays just because an impact assessment had not been done properly.

What we don’t yet know is whether Buckland is pressing ahead with proposals that go much further than the two already confirmed. Parliament could introduce a presumption that any quashing order should be suspended, he suggested in March, or even a requirement that all quashing orders would be suspended unless there was an exceptional public interest in not doing so.

Giving judges greater powers is welcome but fettering their discretion must be unacceptable

The government is also considering whether to give judges the discretion to make a remedy prospective-only in nature. A court ruling along those lines would save the cost of paying compensation to people who had been denied their rights in the past. And that, ministers want us to believe, would “enable the government to continue to spend on improving the lives of its citizens”. But not those citizens who had just won their claims: as the government recognised, “this could lead to an immediate unjust outcome for many of those who have already been affected by an improperly made policy”.

Giving judges greater powers is welcome but fettering their discretion must be unacceptable. We shall have to wait for the legislation to see how far Buckland thinks he can go. And we may have to wait until the bill’s closing stages in the Lords next year to see what parliament will let him get away with. As the lord chancellor himself said in June, “all of us have a responsibility to maintain the balance”.

Next on the horizon is the government’s independent Human Rights Act review. A panel headed by Sir Peter Gross has been examining the act’s effectiveness and he is planning to send its findings to the lord chancellor in September.

I would then expect Buckland to publish a green paper, setting out options for reform. There is no prospect of immediate legislation and the government has ruled out the possibility of rewriting any of the rights in the human rights convention or pulling out of the European convention completely.

Buckland’s third project involves updating Tony Blair’s Constitutional Reform Act 2005, which left the lord chancellor’s post in its current hybrid form. One of his ambitions is to restore the lord chancellor as a “linchpin” connecting the legislature, executive and the judiciary. Might that mean returning the lord chancellor to the House of Lords and keeping a separate justice secretary in the Commons?

The 2005 act requires the lord chancellor to respect the rule of law — without defining what that means. That caused difficulties last autumn when what is now the United Kingdom Internal Market Act 2020 was before parliament. The government accepted that provisions in the bill, subsequently withdrawn, breached international law “in a very specific and limited way”. Ministers were accused of breaking the rule of law.

Describing this principle as a “protean concept”, Buckland says it should not be used to “read down” legislation, or reinterpret it. If a sovereign parliament authorises a minister to break an international treaty, that minister cannot be breaking the rule of law.

This is a very unattractive argument. The rule of law encompasses much more than laws passed by parliament. Redefining it in the way Buckland proposes will not allow ministers to escape moral opprobrium.

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