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Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government in the University of Oxford

The last days of this Parliament are a fit moment to consider the state of our constitution, which the next Parliament has a responsibility to address. Almost five years ago, Policy Exchange founded the Judicial Power Project to consider the expansion of judicial power and its consequences for the health of our governing arrangements. This was a topic long neglected by all parties, but its political significance has become much more obvious in the last year or two.

This week, my colleagues and I are publishing three articles for ConservativeHome that consider some of the constitutional and legal issues that the next Parliament has good reason to address.  This first article directly concerns the expansion of judicial power and the rise of political litigation. The second examines the particular problem of lawfare and its consequences for UK forces. The third takes a wider lens to consider the question of constitutional reform at large.

The UK has long had a political constitution, in which central questions about how we are to be governed are framed by constitutional convention and settled by political process.  Parliamentary sovereignty removes any legal obstacle to Parliament changing the law; responsible government means that the Government is sustained in office by, and is accountable to, Parliament. The Government is bound by law, as are we all, and courts have a vital duty to uphold the law, including in disputes between executive and citizen. However, the courts have not had a free-wheeling jurisdiction to second-guess the legitimacy of policy or legislation or to enforce good constitutional practice. Their proper constitutional role is more limited than this.

The integrity of the political constitution has been put in doubt by the rise of political litigation.  This is obvious in the human rights law context, but not only there. Consider the Supreme Court’s recent prorogation judgment, which invented new legal limits on the power to prorogue Parliament. The Court’s assertion that the prorogation had an extreme effect upon the fundamentals of democracy was nothing more than a (contestable) political evaluation.  In quashing the prorogation, the Court had to sidestep Article 9 of the Bill of Rights 1689, which prohibits courts from calling into question proceedings in Parliament, not to mention its earlier holding, in the first Gina Miller case, that it is not for courts to enforce constitutional conventions.

This judgment is a watershed.  It abandons long-established, principled limits on judicial power – limits stated with care by the High Court – and suggests that the Supreme Court now understands itself to be the guardian of the constitution. The judgment invites judicial intervention into politics more generally, including in relation to the dissolution of Parliament (if or when the Fixed-term Parliaments Act is repealed), royal assent, and foreign policy and military action. Should the next Parliament let this stand?  It would be open to Parliament to enact legislation – a Constitutional Restoration Act – to reverse the effects of the Supreme Court’s judgment, making clear that Article 9 applies to acts of the Crown in Parliament, specifying that the Supreme Court’s judgment is not authoritative, and providing that certain powers cannot be challenged in court.

The prorogation judgment nominally acknowledges and relies upon parliamentary sovereignty.  In fact, the judgment misconceives that fundamental proposition. More worrying still are a number of other judgments (including one from May this year) in which some judges have openly contemplated striking down an Act of Parliament. It may be that the next Parliament needs to make clear that it recognises that such judicial action would be lawless and unconstitutional. Parliament also has good reason to act to reverse judgments in which courts pay lip service to parliamentary sovereignty but deliberately misinterpret legislation in violation of its intended meaning and effect.

The law of judicial review has expanded over recent decades. The next Parliament needs to be open to legislating where appropriate to restore principled limits. It might consider putting the law of judicial review on a statutory footing or, more modestly, legislating in response to particular judgments that expand review or in anticipation of such judgments. It would be perfectly proper, for example, to legislate to prevent proportionality becoming a general ground of review.

It is vital that judges enjoy security of tenure and it would be a bad development if judges were appointed on the basis of their political dispositions. The point of constitutional reform in this domain should be to make the politics of judges less important, not more. However, the Government has a responsibility to appoint judges who are likely to have a sound understanding of their constitutional role and it should exercise its existing powers to this end. Parliament should also consider modestly expanding political involvement in judicial appointments.  Likewise, any new Constitutional Restoration Act might perhaps rename the Supreme Court the Upper Court of Appeal, to signal that its role is not to supervise the constitutional balance at large, and specify in terms that the Court’s duty is to adjudicate disputes according to law, not to guard the constitution.

Another question for the next Parliament will be the future of the Human Rights Act 1998, which has been an engine for political litigation. Parliament is responsible for the statute book and is fully entitled to amend or repeal the Act. There is a powerful case for repeal but it might be more prudent, at a time of wider constitutional instability, to amend it in the first instance.  Amendment might usefully correct some of the ways in which the Act has been misconstrued over the last decade, including wrongly to expand its temporal and territorial scope and to rationalise finding legislation or policy incompatible with rights even when the European Court of Human Rights would uphold it. It would also be reasonable to amend the Act to prevent its use to misinterpret other legislation. This would help to restore the rule of law, which the Act otherwise undermines.

Reforming the Human Rights Act is important. So too is addressing the way in which the European Court of Human Rights often misinterprets the Convention. The next Parliament should support the Government if it attempts to propose a new protocol to the Convention, which would allow member states to make reservations against the Court’s misinterpretation.  And until such a protocol is adopted, Parliament should think carefully before complying with judgments that depart from the Convention’s terms and which put in doubt important UK interests or political freedoms.

For too long parliamentarians have not attended to their responsibility to maintain the balance of the constitution. The expansion of judicial power, which turns both on Parliament’s enactment of the Human Rights Act and on how some judges have come to understand their function, puts that balance in doubt. The next Parliament has good reason to begin to put this to rights.

 

 

34 comments for: Richard Ekins: Judicial power and the election. Can the next Parliament reverse the rise of political litigation?

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