04:15, February 12 40 0 theguardian.com

2020-02-12 04:15:06
This government has plans that would destroy the protection of the law

On Sunday, the lord chancellor, Robert Buckland, said he would resist attempts to politicise and weaken the judiciary. He said he would uphold his oath as lord chancellor to protect judges’ independence. He’s taking on his own government and we should support him.

The Tory manifesto included a pledge to restrict the courts’ powers to take on the government. It characterised some recent judicial review findings against the government as abusive – the ruling against prorogation and the Gina Miller case are presumably what they had in mind. This government is determined to prevent the courts from being a fetter on what it wants to do.

It has two muzzles in mind. First, giving politicians greater influence over the appointment of senior judges, and second, taking some big government decisions that affect politics out of judicial review. No 10 briefed, the night before the Queen’s speech in December, either ignorantly or deceitfully, of decreasing the power of the supreme court, and increasing the power of the lord chancellor. It claims to fear the UK court becoming like the US supreme court which decides big political issues such as abortion or desegregation.

In the US there is a written constitution which sets limits on what Congress can do. The US supreme court determines what those limits are. The constitution, for example, determines whether everyone has a right to choose whether to have an abortion. In the UK, where there is no written constitution, parliament is sovereign. It decides whether abortion should be permitted. Once parliament has decided an issue like that the courts cannot interfere. And they don’t.

Prof Richard Ekins, the head of the judicial power project at the government’s favourite thinktank, Policy Exchange, has suggested increasing the lord chancellor’s power to interfere with senior judicial appointments, to ensure that “judicial activists” don’t get appointed to senior positions. He suggests the lord chancellor should more often use his existing, very limited, powers to reject judges proposed by the independent judicial appointments commission and should be given new power to choose all senior judicial appointments from a shortlist of three.

This is wrong-headed. The more politicians are involved in judicial appointments, the more political judges will become. Not in the sense that they will start to decide issues like abortion, but that they will start to decide cases in a way that will get them promoted by politicians. At the heart of Ekins’s independence-reducing idea is the view that some – not all – judges do not respect the supremacy of parliament and, for example, construe statutes in ways that do not give effect to the intention of parliament, or decide judicial review cases in a way that seeks to frustrate the will of parliament. Giving the politicians more say in weeding out those judges who are too “activist” will, he believes, ensure a cadre of senior judges who respect the line between the courts and politics. As he must know, it will lead to judges who defer to the executive being promoted more.

The other prong of the No 10 plan to weaken the supreme court is to declare, by statute, that cases such as the prorogation one last year, which involve the exercise of the royal prerogative, are beyond the reach of the courts – they are non-justiciable. This would have prevented the supreme court finding that the prorogation of parliament was unlawful.

Strengthening the role of the lord chancellor is No 10’s sweetener for the reduction of the power and independence of the supreme court. The only measure it has mentioned so far is specifying that the lord chancellor should be a lawyer. Yes, that would help to avoid Titanic disasters such as Chris Grayling or Liz Truss. But you can always find an amenable lawyer. Among the casualties of Harold Macmillan’s night of the long knives cabinet reshuffle was Lord Kilmuir, the lord chancellor. He complained he had received less notice than would his cook. Macmillan replied that cooks were a lot harder to come by than lord chancellors.

The purpose of the judicial appointments process must above all be to ensure independence of the judges from the executive. If their promotion to the supreme court depends on pleasing the politicians their independence is crucially compromised. The ability of the lord chancellor to remonstrate with the prime minister is no substitute for the courts fearlessly prohibiting unlawful acts, and unscrambling their consequences.

The effect of declaring by statute that something is non-justiciable is to declare that it is outside the realm of the law. The courts would be powerless to prevent it – because it would be for the politicians to resolve. And the lord chancellor, the voice of the law in cabinet, would, rightly, be told that since the issue is outside the realm of the law he or she is the last person with any authority on the issue.

The executive can arrest, imprison, remove children, confiscate property, remove union rights, close down parliament indefinitely, close businesses, close publications, declare war, sell arms and break humanitarian law, deport. It is the courts, not the lord chancellor, that prevent the abusive use of these powers. The lord chancellor can protest internally within government or even publicly. And that is of some value as a restraint on a government embarking on flagrantly unlawful conduct, for example, by deliberately breaking an act of parliament such as the Benn Act. But ultimately the courts alone can prohibit unlawful state actions. They are proudly and defiantly independent of the government. They uphold the rights of the citizen against the executive. And do so even in cases where it upsets the government’s political plans.

The protection of the law will be destroyed if judicial promotion is dependent on not upsetting the government, and if courts cannot rule on cases that might embarrass the state. The lord chancellor needs all our support to stop this.

Lord Falconer was lord chancellor in Tony Blair’s government

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