Ministers 'could use legislation to strike out judicial rulings they don't like' under reforms being pushed by Boris Johnson
Ministers could strike out judicial rulings they do not like under reforms being pushed by Boris Johnson, it was claimed today.
The government is said to be considering a system of annual legislation that would effectively overrule judicial reviews of policy.
The idea immediately sparked an outcry from the legal community amid accusations of a war on the powers of judges.
Justice Secretary Dominic Raab and Attorney General Suella Braverman are looking at the option of passing a yearly 'Interpretation Bill' to counter unhelpful rulings, according to The Times.
No10 is believed to favour the approach, with supporters adamant that the constitutional principle of parliament's supremacy over the unelected judiciary must be upheld.
But senior Tories are among those criticising the prospect, even before details are clear. Ministry of Justice sources today ruled out ministers getting delegated powers to change statute law.
But Edward Garnier QC, solicitor general when David Cameron, raised concerns that rulings could be struck out by 'fiat'.
Ministers could strike out judicial rulings they do not like under reforms being drawn up by Dominic Raab (left) and pushed by Boris Johnson (right), it was claimed today
In 2019 the Supreme Court ruled that proroguing parliament for five weeks just before a Brexit deadline had been unlawful
'This government seems to forget that like all of us it, too, is subject to the law,' he said.
'And I should have thought that No 10 would have learnt the lesson of the prorogation battle, when the Supreme Court reminded the government that this is a country under the rule of law and not under a dictatorship.'
Garnier added: 'If the prime minister does not like a lawful ruling of the court that has been a legitimate interpretation of statute passed by parliament, it is open to the government to attempt to change the law by an act of parliament.
'But it is not for some here-today gone-tomorrow minister to change permanently existing statute law by ministerial fiat.'
Former justice secretary David Gauke told The Times: 'If the government is contemplating getting parliament to retrospectively change the law as it has been interpreted by judges, then that would be an extremely worrying step and a departure from the rule of law and the traditions of this country.'
Mr Johnson has clashed heavily with the judiciary in the past. In 2019 the Supreme Court ruled that proroguing parliament for five weeks just before a Brexit deadline had been unlawful.
The latest ideas are apparently too late to be included in the current Judicial Review and Courts Bill, but could reportedly be brought forward separately next year.
A Ministry of Justice source insisted they were focused on the existing Bill.
The speculation came after Mr Raab vowed yesterday to stop Britain's 'drift' towards continental-style privacy laws.
The deputy PM said he wanted an overhaul of the Human Rights Act to include 'correcting' the balance between freedom of speech and privacy.
His comments come after criticism of the result of a legal case between the Duchess of Sussex and The Mail on Sunday.
The Appeal Court ruled last week that Meghan had a 'reasonable expectation of privacy' over a letter written to her estranged father Thomas Markle.
Although the planned changes are not a response to that case, Mr Raab said proposals will be brought forward within weeks to renew the focus on freedom of expression, which is traditionally prioritised in British law over privacy.
'We're finalising the consultation on that. We want to overhaul the Human Rights Act,' he told Times Radio.
'There's been lots of discussion in the Sunday papers about free speech and privacy and the judge-made privacy laws that we've seen develop in this country over recent years.
'Part of that's been the EU – the right to be forgotten. Part of it is Strasbourg case law. I think we do in this country have a tradition which emphasises and prioritises free speech and open debate. I think that's something which is pro-freedom that we'll look at.'
At present, under the Human Rights Act, judges have to abide by rulings of the European Court of Human Rights in Strasbourg, France – and Mr Raab said that had contributed to a drift towards a privacy law. He said if such a law is brought in, it should be decided by MPs and not judges on a case-by-case basis.
The Justice Secretary added: 'The British tradition, if you look back from John Locke, John Stuart Mill to Isaiah Berlin, the politics of this country, we've had a heavier emphasis on free speech, transparency, accountability for politicians, for people in positions of influence.
'We don't have the continental-style privacy law protections. And I think, if we were going to go down that route, it should have been decided by elected politicians.
'And I think that's a good example of the kind of balance that we can strike with our own homegrown approach to this rather than the over reliance on a continental model, which is effectively what the Human Rights Act has left us with.
'Of course, at the same time, what I want to see is stronger respect for the democratic prerogatives of Parliament to legislate in those areas.'
Mr Raab said the Government wanted to get the balance right, to ensure that people could be protected from paedophiles, scammers and radicalisers.
'But certainly, I think the drift towards continental-style privacy laws, innovated in the courtroom, not by elected lawmakers in the House of Commons, is something that we can and should correct,' he said.
Legal experts have warned that the Duchess of Sussex's court case against the Mail's sister title could have a chilling effect on free speech.
Downing Street has also hinted at action. Asked whether Boris Johnson believed judges were getting the balance right between privacy and free speech, a Number 10 spokesman told reporters last week: 'We will study the implications of the judgment carefully. You have heard the Prime Minister say before that a free Press is one of the cornerstones of any democracy, and this Government recognises the vital role that newspapers and the media play in holding people to account and shining a light on the issues which matter.'
Last week Tory MP Damian Green, a member of the Commons culture committee, said: 'If we want privacy laws, they need to go through Parliament and not be decided on a case-by-case basis in the courts.'
Asked whether Boris Johnson believed judges were getting the balance right between privacy and free speech, a Number 10 spokesman told reporters last week: 'We will study the implications of the judgment carefully'
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