There is one thing that Boris Johnson and I actually agree on, and it is that courts and judges should never be used to “conduct politics by another means”, as he said in his election manifesto and again in a 2020 speech. But what Johnson proposed on Monday with his interpretation bill – which would make it possible for the government to strike out findings from judicial reviews that he and his ministers disagree with – would make our courts overtly and dangerously political.
A judicial review allows judges to examine the lawfulness of an action taken by a public body, they are often initiated by citizens or civil society groups to hold government to account. The cases that I brought against Johnson’s and Theresa May’s governments, challenging their right to make policy without parliamentary approval, and further to prorogue parliament, were cited as his excuse for asserting “parliamentary sovereignty” over “an unelected judiciary”.
This is an outrageous lie, as both cases were about upholding parliamentary sovereignty against an overbearing executive which was frustrating and preventing our elected representatives from carrying out their constitutional function in parliament.
The fact that the supreme court found in my favour in the prorogation case 12 – 0, and that Johnson’s advice to the Queen was unlawful, void and of no effect, allowing parliament to reconvene, is what appears to be fuelling his vengeful “war” on judges.
In the Conservative party’s 2019 manifesto, Johnson’s government made it clear that it intended to pursue a broad review of the UK constitution, including “ensuring that judicial review is not abused to conduct politics by other means or to create needless delays”.
Many of us nervously awaited the report from the appointed independent review of administrative law, chaired by the former justice minister Lord Faulks QC, hoping it would be fair and support the rights of citizens to challenge decision by public bodies, regulators and the executive.
In submission to the review, independent bodies were queueing up to sing the praises of the current judicial review system. It is very carefully calibrated so people cannot just turn up at courts or bring cases – there are stages to sift out weak cases, politically overt cases and cases that do not meet the legal threshold – all acting as essential failsafe mechanisms.
The Law Society of England and Wales said the system was “working well and achieving its purpose”. The Bar Council of England and Wales rejected the suggestion that there was a conflict between judicial review and the “proper and effective discharge of government functions”. Indeed, they described judicial review as a “critical mechanism” for securing proper and effective government functions. Dame Vera Baird QC, the victims commissioner, said that judicial review was a means of enhancing the effectiveness of government and not undermining it.
Faulks had little choice but to conclude, in March 2021, that only modest changes were needed for judicial review. This was not what the government wanted to hear, and so the then justice secretary, Robert Buckland, was charged with coming up with recommendations that were more in tune with the government’s wishes. Buckland also declined to recommend curbing the power of judicial review, and he was sacked in favour of Dominic Raab in September.
Part of the government’s strategy in its “war” is to pigeonhole judicial review as only being against ministers, but the judicial review process is largely about vulnerable, ordinary citizens’ access to justice.
The process is credited with quashing the original inquests’ verdict of “accidental death” at Hillsborough and ordering new inquests. It provided an avenue for justice for the three women serving in the armed forces after the then defence secretary, Ben Wallace, said in February that he was ignoring a recommendation that rape and other serious cases involving the military in the UK should routinely be handled by the police and Crown Prosecution Service.
There was also the judicial review of arms sales to Saudi Arabia, which resulted in the court of appeal concluding in June 2019 that the government’s decision-making process for granting export licences was “irrational” and therefore “unlawful”. More recently, the government has also faced several judicial review challenges over its award of contracts during the Covid-19 pandemic – with, no doubt, more to come.
In 2020, the then attorney general, Sir Geoffrey Cox, since replaced by Suella Braverman, insisted that the government wouldn’t compromise the “fundamental principle of the independence of the judiciary”. He said there would be “no question of weakening judicial review”. But that is precisely what is now being proposed by the anti-democracy trio of Raab, Braverman and Johnson.
Our British judges have never been, as they were so maliciously characterised, the “enemies of the people”. An independent legal profession and a government accountable to the people are a fundamental pillar of our democracy. Responsible politicians should be insulating the judiciary from politics and executive power, not making it an ideological stick to stir a populist fervour that ultimately damages our country.