February 08 2023

‘It’s payback time…’

‘It’s payback time…’

In announcing that judges’ sentencing remarks in criminal trials are going to be streamed live from the Crown Court, the government has superficially moved towards judicial transparency, drawing the curtain aside on a process that, given its foundational role in our state, has been too opaque.  Unfortunately, this has been married with a proposal to re-evaluate the operation of judicial review, the government making good on one of the few controversial promises contained within its manifesto.

Earlier this week Boris Johnson announced plans to prevent judicial review being used to ‘conduct politics by another means’.

This is payback time. It’s revenge for losing 11-nil in the Supreme Court. It’s like losing 11-nil in the cup final and coming with a baseball bat for the referee.’
Shadow Attorney General, Shami Chakrabarti 

It is noteworthy, too, that it is criminal sentencing which the government is intending on opening up to public spectacle. Of all areas of law likely to incite the ire of the angry and the ignorant, criminal sentencing is the most inflammatory, with viewers unlikely to be sympathetic to the legal constraints that judges operate within. Instead, the sentencing may become an exhibition akin to the executions of the Dickensian age, but with the audience directing their opprobrium at the judges for failing to bring the full weight of the law, as they perceive it, upon the convicted. 

The simultaneous discussion of these two proposals suggests that it is not the promotion of the rule of law which is motivating the government, but the suppression of a troublesome element of state apparatus.

With his majority, Johnson will not face meaningful opposition in Parliament, especially while the Labour Party continue their four-month period of navel-gazing, whilst Whitehall is being subjected to Dominic Cummings’ lacerating gaze.  This leaves only the courts, which have long been viewed as hostile by the Conservatives, their powers under the Human Rights Act, alongside the judiciary’s perceived liberalism, undemocratically constraining government action.

Such hostility, alongside a manufactured need to cut spending, motivated the reform of judicial review by David Cameron’s government.  There, under the questionable auspices of Chris Grayling, wholesale reform took place, with a punitive financial regime installed in the expectation that it would deter challenges to government decisions. Alongside this, intervening charities have been exposed to the risk of devastating costs orders, whilst the government has been aided in no longer having to show that, had the decision been made properly, it would have ‘inevitably’ been the same, but merely ‘highly likely’.  

These reforms were implemented in the face of a welter of criticism from various think tanks, including the Bingham Centre and the Public Law Project, as well as the House of Lords’ Constitution Committee; and they have had little time to bed in, with the consequences of the reforms impossible to effectively assess as of yet.  Instead, any further curtailment of the powers of, or access to the courts must be seen as a vituperative government seeking revenge against the Supreme Court for having the audacity to strike down Johnson’s attempt to impose executive hegemony by proroguing Parliament.  

According to Downing Street, their intent is to stop cases ‘clearly being brought for political motives’, preventing charities and campaigning organisations’ litigating ‘with the aim of frustrating the government’. 

This fundamentally misrepresents judicial review, which is more often concerned with the procedures and reasons underpinning government decisions, than with the nature of the decision itself.  Moreover, charities and campaigning groups often represent the poorest and most disenfranchised members of society, individuals who lack the financial means and wherewithal to launch complex actions against the government.  Given the demolition of legal aid and the dearth of legal advice centres around the country, individuals have been left dependent on such interest groups and charities for the protection of their rights.  

Further curtailment of judicial review will eviscerate a foundational element of our constitutional edifice, and the government should not be confident such legislation will survive judicial scrutiny. 

As May and Johnson pushed at the limits of executive power during their premierships, the Supreme Court responded in kind, refusing to defer to executive power, instead emphasising that some constitutional principles are not easily abrogated.  In Cherry/Miller II, a unanimous court held that it falls to the courts to ‘determine the legal limits of the powers conferred on each branch of government’, and that it will not ‘shirk’ its role merely because the issue may be ‘political in tone or context’.  Should Johnson continue down this path, his draconian ways may ironically serve to elevate the Supreme Court even further, forcing the justices to declare their role as the ultimate guardians of the constitution.   

 As we leave the European Union, we are given a choice.  We can pursue a path as a modern, liberal democracy, showing that you don’t have to be a superpower or tied to a political bloc to flourish on the world stage.  Or we can follow the path of the eastern European states, where democracy, having shone, is now shrouded by authoritarianism.  Exposing our judges to the glare of publicity when handing down sentences, and suggesting that our judiciary are political apparatchiks, who need checking by the government, suggests that it is the latter path we are currently heading down. 

In Poland, the people and their judges are marching in defence of liberal democracy and the rule of law.  We must hope Johnson’s vengeful instincts do not bring us to such a pass as well.