Profoundly problematic?

Mark Elliott, Professor of Public Law & Chair of the Faculty of Law, University of Cambridge

By Molly Pollock

On 17 October 2021 Dominic Raab, the UK Government’s Justice Secretary, told the Sunday Telegraph that the Government was considering making changes to the law on judicial review and to the Human Rights Act 1998. This would include creating powers to ‘correct’ judicial decisions that ministers consider to be ‘incorrect’.

On Twitter the response to this was immediate condemnaton.

The proposal was described as extraordinary- an override of the courts, an end to the rule of law and yet another step towards a one party state. The mechanism was descrobed as tyrannical, authoritative and dangerous, with Tories taking their inspiration from Hungary and Poland. It was considered fundamentally wrong for a government to want to have the final say in whether it can be challenged in court. Some pointed out that right-wing populists in other countries have dismantled the rule of law gradually over several terms., resulting in the executive demanding the court decisions it wants from judges.

Some lamented the fact that this state of affairs would come about because voters couldn’t see what was wrong with the process.

Mark Elliott, Professor of Public Law & Chair of the Faculty of Law, University of Cambridge, took to Twitter to make known his concerns with Dominic Raab’s proposals, saying they raised three key constitutional concerns.

“First, it sounds like the Government is reopening the question of judicial review ‘reform’. That isn’t in itself problematic: JR isn’t perfect and there’s no inherently ‘right’ balance between executive/legislative autonomy and judicial overview.

“But we should be concerned if the Government is inclined to reduce the courts’ judicial review powers simply because courts make decisions that it finds uncomfortable. Government’s willingness to accept such discomfort is a prerequisite in a rule of law based democracy.

“If, then, he’s actually proposing that ministers should have broad powers to make secondary legislation ‘correcting’ court judgments, then this is profoundly problematic. Indeed, it turns constitutional principle on its head.

“Ultimately, this all strikes me as part of a project to enhance executive supremacy — an ‘executive power project’, if you will — by treating courts (whether ‘foreign’ or domestic) as unwelcome interlopers, all masquerading as an attempt to ‘protect Parliament’.

Professor Elliott expands on his Twitter comments in this video, arguing that the proposals imply a lack of respect on the part of the UK Government for key constitutional principles.