If we have learnt anything from the recent months spent oscillating between various degrees of lockdown, it is that certainty should be a touchstone of government policy. At the beginning of the first lockdown, the rules were clear and understood, so public adherence was widespread. Apart from the rogue hikers in the Peak District, hunted down by police drones, there was little to complain about, with most people diligently hunkering down and hoping to wait the virus out.
From this high point, there has been steady decline, with no one any longer truly sure what the government’s uniquely incoherent blend of legislation, regulation and advice actually requires them to do. If, as Jeremy Corbyn discovered, someone pops in to a dinner party for dessert, taking you to seven guests, do you all have to go home? Or can you pretend it’s an ice hockey game, and swap people in and out of the downstairs loo, with never more than six in the kitchen at a time?
Of the all adjectives available to describe the government, ‘uncertain’ might therefore be the least offensive, but still accurate, word left available. Given this, it is a little surprising, although not necessarily illogical, for the Lord Chancellor, Robert Buckland, to argue that it is the need for certainty that justifies the clauses seeking to curtail judicial review and international law in the Internal Markets Bill. Buckland made this argument in his appearance before the House of Lords’ Constitution Committee, responding to Lord Pannick’s concerns by saying ‘I felt, and… the government felt… that there was [a need for] increased certainty when it came to these particular provisions’.
The trouble for Buckland is that while certainty is a touchstone for government, it is not the only one. As many of the challenges to the lockdown regulations have shown, even if they have been certain in what they ordered, they have been made in a way more reminiscent of a totalitarian state than a democracy. They’ve been made by decree, without debate, and published mere moments before coming into force. Democratic governments must enact legislation but still accept that they need to be held to account- they cannot, and should not, try to grant themselves unchecked power. This is what the IMB does, with Buckland seeking to disguise the government’s pursuit of absolute authority as the more benign pursuit of certainty.
Buckland is not a stupid man, but in arguing that ‘clause 47 goes that bit further’ in trying to limit review, he is dancing on the head of a pin, fatuously claiming that the ‘qualifications… are not of a type that could be reasonably argued as creating… a fundamental ouster, or even a significant ouster’ to judicial review. As has been argued by many, including me, the IMB is arguably the most authoritarian piece of legislation ever laid before parliament. Regardless of what Buckland blusters about not ‘tolerat[ing]… any unintentional slide into tyranny…’, the fact that he has even felt obliged to acknowledge a risk of tyranny shows how far this legislation has gone beyond the pale.
Little more exemplifies the need for judicial review than the current state of our prisons. Earlier this week, the Prison Reform Trust wrote to the Lord Chancellor ‘again’, expressly drawing his attention to the ‘rapidly developing situation in prisons in outbreaks of Covid-19’. Prisons were already in an alarming state before the pandemic, with the Prisons Inspectorate and the Howard League, among others, frequently drawing attention to the distressingly decrepit condition of the prison estate, the overcrowding of cells, and the ineffective rehabilitation programmes. Things have only got worse. Prisoners have been consistently detained in these same overcrowded cells for almost 24 hours a day, with food shoved under their doors, while they are deprived of meaningful contact with their friends and family. Prisoners are instead forced to rely on pixelated versions of their family, facing the endless frustration of dropped calls and interrupted signals, assuming that they already have the technology to contact them in the first place.
Meanwhile, for any prisoners with the audacity to show symptoms, the conditions become even more appalling, with the Prison Reform Trust reporting that ‘a small number of symptomatic prisoners had been isolated in their cells without any opportunity to come out for a shower or exercise for up to 14 days’. If the government were found to be locking up dogs without letting them be cleaned or exercised, the public outrage would be overwhelming, and it would lead to the government once more reversing the vast edifice of the state, and heading in the opposite direction. Instead, because those affected are either prisoners or convicts, there is little to no public concern. Indeed, the greatest public outcry has been against those judges who have been taking into account the conditions in prisons when sentencing and reducing the length of sentence accordingly. Given this, and the public’s dissatisfaction with the government already, it’s hardly a surprise Johnson’s not putting his neck on the line for prisoners.
In theory, the government had promised to remedy this lamentable to state of affairs by arranging for the early release of some, less dangerous criminals. Many countries took this approach, including the notoriously felon-phobic United States, improving the prospects of prisoners being treated humanely, and minimising the risk of the coronavirus spreading rampantly throughout prisons. Such an approach was not adopted by the UK’s government, who, while identifying up to 4000 prisoners suitable for early release, only released 275 before suspending the programme in August. It took the Howard League’s threatening of judicial review proceedings for the government to fully disclose its guidance for the scheme in April, and after the League withdrew its threat of legal action, the early release scheme ground to a halt once more.
There is plenty of certainty in these circumstances. The rules confining prisoners to their cells and banning prisoners from receiving visitors are perfectly transparent, but that does not make them any more just. It is by virtue of judicial review claims, like those filed on behalf of the children who have been deprived of any contact with their parents, that justice is provided. If the courts were prevented from considering the human rights of prisoners, much as the IBM prevents them from considering human rights in the context of the internal market, it could not be justified simply because the government wants ‘as much certainty as possible’, as Buckland’s logic would have it. Instead, by forcing the courts to look away from such violations and perhaps give their imprimatur to them, it creates a Potemkin system of law, where the facade of legitimacy conceals the rot of injustice.
Judicial review is not an cure for all ills. The human intelligence bill currently before parliament shows this, permitting the security services to commit crimes lawfully- up to and including, its critics argue, torture and murder. Anyone affected by such crimes will find little meaningful redress in the courts. Yet despite this, judicial review is invaluable in holding governments to account, precisely because it introduces uncertainty. A government that does not have to face up to its actions is a government that becomes sloppy, willing to cut corners because it’s easy, and no one can tell them otherwise. Johnson’s government doesn’t need any help on this front. This is why we need the courts. Civilised societies trade the certainty of absolutism for the prospect of justice.