What should we make of the Times story yesterday, which appeared under the headline ‘Boris Johnson Plans To Let Ministers Throw Out Legal Rulings’? The impression given is that ministers will somehow be handed powers by the Prime Minister simply to ignore court rulings that they do not like. That would lead to an extraordinary constitutional crisis, involving either the arrest and imprisonment of ministers for contempt of court, or the arrest and imprisonment of judges with the government exercising Erdogan-style despotism.
Nobody can seriously believe that this is what is intended, and the rest of the Times story makes clear that it is not. Instead, the idea which is said to find favour with the Justice Secretary and the Attorney General, is ‘an annual “Interpretation Bill” to strike out findings from judicial reviews with which the government does not agree’.
That, of course, is a very different thing from giving ministers a power to ignore awkward court rulings. Parliament has always had the power to pass statutes to reverse court judgments. But an annual bill to reverse particular rulings seems not so much sinister, as ridiculous and unworkable.
An annual bill to reverse particular rulings seems not so much sinister, as ridiculous and unworkable
Passing an Act of Parliament takes time. A bill must be drafted. Time must be found for all its stages in both Houses of Parliament. If there is to be an annual Interpretation Act, other legislation will have to be dropped. Aggrieved ministers cannot expect that the bills will be nodded through parliament without objection. They will deal with contentious matters and will be opposed and amended. The House of Lords would not find itself constrained by convention, because reversing particular judgments will not have featured in any manifesto.
And while ‘reversing legal rulings’ might sound conceptually easy, the practicalities are another matter altogether. Take, for example, the Supreme Court’s ruling that Boris Johnson acted unlawfully in proroguing parliament in 2019. Mr Johnson is said to be particularly keen to reverse the ruling. But ‘reversing’ it would require a great deal more than an empty-stable door-bolting declaration that the judges got it wrong.
Would the objective be to exclude any judicial intervention in any future decision to prorogue parliament? Where then would that leave the courts in the event that a future prime minister wished to suspend parliamentary democracy for 12 months, or indefinitely? Even many loyal Conservative MPs might think it unwise to rely too heavily on the central British constitutional principle that good chaps wouldn’t do something like that.
So perhaps, rather than excluding all possible judicial intervention, the bill would seek to limit the possibility of judicial intervention rather than exclude it altogether. That would be more sensible, but it would raise the obvious question: limit it in what way, and to what extent? There are good arguments for putting some or even all royal prerogatives — the powers that ministers can exercise without statutory or parliamentary approval — on a statutory basis, but an annual Interpretation Bill is one of the worst possible ways of doing so. Tinkering with the constitution is a complex business. It needs to be done carefully and thoughtfully, not rushed through in an annual bash-the-judges Revenge Bill.
And what is true about the prorogation case is equally true about another judgment, said to be exercising Mr Raab; that concerning the privacy of the Duchess of Sussex’s letters. How, exactly would ‘reversing’ that go? Would MPs be asked to vote on a clause saying, in effect, ‘everyone’s right to privacy is hereby abolished’? I doubt that would find much favour, and especially not among those MPs who prefer, in many cases quite reasonably, to have some secrets.
There is a great deal to be said, and almost all of it has been said repeatedly over the course of many years, for some sort of statutory right to privacy. There is nothing to stop parliament creating one — least of all judges. The reason it has not done so already is, first, that it is extremely difficult to frame a privacy law that balances the reasonable protection of privacy with the legitimate freedom of the press; and, secondly, that the likely effect of any statutory privacy law would be to make the judges the ultimate arbiters of where the balance should lie, in effect reproducing much the same common law as we have already. The idea that an annual bill rushed through parliament would produce a better law than that is absurd.
The idea will come to nothing. Those responsible for floating the story know that perfectly well. What is depressing is that attacking the judges plays well politically. This nonsense appears to be another way of continuing that attack. It is disingenuous, it is dangerous and it will end badly.
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