13:06, December 28 251 0 theguardian.com

2019-12-28 13:06:06
Michael Howard claims judges 'distorted' law in prorogation ruling

The former Tory leader Michael Howard has criticised the supreme court for ruling that Boris Johnson’s prorogation of parliament was “unlawful” and called for a reform of the judiciary.

Judges in England and Wales have long been permitted to interpret law on a case-by-case basis, although they are bound by precedent, but Howard claimed that they sometimes “distort” law to “reach they result they want to achieve”.

In comments which will be seen as part of growing calls for judicial reform within the Conservative party, Lord Howard of Lympne – a former barrister – alleged that judges have “increasingly substituted their own view of what is right for the view of parliament and of ministers”.

“The question is who should make the law by which we are ruled. Should it be made by elected accountable politicians answerable to their constituents and vulnerable to summary dismissal at elections,” he told BBC Radio 4’s Today programme.

“What we’ve seen in recent years is a very considerable increase in the power of the judiciary, partly as a result of the expansion of judicial review.”

He said judges were invited by parliament under the Human Rights Act to “enter the political arena”, including by considering whether “measures that parliament had taken to deal with a particular problem were proportionate to the objectives they wanted to achieve”.

Howard added: “So, those two things have led to a significant increase in the power of the judges at the expense of parliament and indeed government … Sometimes in order to reach the result they want to achieve, they … distort the meaning of the act of parliament of which they are interpreting.”

He went on to question whether it should be elected politicians or unelected judges who make the law, saying the law states that parliamentary proceedings should not be impeached in any court.

But he noted that the outgoing supreme court president Lady Hale had said that because prorogation was not a decision of parliament, it did not amount to a proceeding.

“Prorogation was clearly, of any ordinary view of the language, a proceeding in parliament,” he said.

Asked if the supreme court’s ruling was a political act, he replied: “I think that judges have increasingly substituted their own view of what is right for the view of parliament and of ministers.

“The excellent Policy Exchange paper to which I have written the foreword makes some sensible suggestions for redressing the balance.”

The paper by the thinktank who have long protected the identities of its donors was published on Saturday. It is entitled “Protecting the Constitution”, calls for the reinstatement of limits on judicial power and the restoration of the political constitution.

The Today programme show, guest edited by Charles Moore, the former Daily Telegraph editor, had asked whether judges were too powerful and sought “to do things that should be left to politicians acting on behalf of the public”.

The government has refused to rule out changes to the way judges in the court are appointed after it announced plans in the Queen’s Speech for a “constitution, democracy and rights commission”.

The move was seen by some at Westminster as an attempt by the prime minister to exact revenge after the court’s ruling on prorogation. Johnson has previously hinted at US-style confirmation hearings for supreme court justices, suggesting they should be subject to “some form of accountability”.

On Friday, Hale warned against any attempt by minsters to “politicise” the judiciary following a series of controversial rulings by the supreme court.

“We have an independent, merit-based appointments system which most of us are extremely comfortable with,” she told the Today programme. “We don’t want to be politicised, we don’t decide political questions, we decide legal questions. In any event, Parliament always has the last word.

“We are not politically motivated. I do not know the political opinions of my colleagues and they do not know mine, and long may it remain so.”

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