WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
February 01 2023
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

‘What hope of the courts riding to the constitution’s rescue?’

‘What hope of the courts riding to the constitution’s rescue?’

Old Bailey: the central criminal court of England and Wales

If there is any solace to be taken from Johnson’s victory in the vote of confidence this week, it is that not every Conservative MP is totally devoid of principle. At least 40% of the parliamentary party recognises that, no matter how much Johnson appealed to the voters at a general election, or how much he still promises to ‘get Brexit done’, he is too wicked to remain in post. In trying to remove Johnson from office, the Conservative rebels showed that the political constitution, which holds the government to account through political, not legal, means, is not dead.

This does not mean that Conservative MPs all chose to try and get rid of Johnson because he offended their values, however.  While moral principle could be in play, it is equally likely that it is pragmatism guiding the hand of these rebel MPs.  Faced with polling that shows a precipitous decline in the prime minister’s popularity, particularly in ‘red wall’ seats seized from Labour in the 2019 election, many Conservative members risk political oblivion if they go into the next general election with Johnson at the helm.   Given the choice between the defenestration of their leader or the obliteration of their political career, most backbenchers have chosen the former. By some counts, 75% voted that they have no confidence in the prime minister.

Even if it is the desire for survival that led most backbenchers to choose this path, pragmatism has always been a part of the UK’s political constitution. In the 19th century, Walter Bagehot, the political theorist, wrote about the ‘efficient secret’ of the UK’s constitution being its blending of the legislative and executive branches – organs of the state that in principle are to be kept separate.  This pragmatism is also how the government gets bills passed, with MPs sometimes holding their nose as they troop through the ayes lobby, voting with the whip, not with their conscience.  And this approach is condoned by the electorate, if election results are anything to go by.  Labour fixate on principle, preferring the unelectable Corbyn over a less scrupulous, but more viable, leader, and some members are now obsessed with the purity of Starmer’s political agenda.  Meanwhile, the Conservative party,  less concerned with questions of principle and purity, has spent much of the last century in power as a loose coalition of right-wing interests.

Such a lack of scruples may be an electoral asset, but under Johnson, it has gone from a method of winning elections to a mode of governance in its own right.   Johnson’s disregard for values and principles began with his indifference to convention, such as when he tried to govern without parliament, but has now risen to neglecting laws and regulations passed by his own government.   Possibly even more damagingly, this rot has not remained confined to the political branches of the state. An All-Party Commons Report was published this week, looking at the relationship between the judiciary and the executive.  It concluded that untoward pressure has been brought upon the courts, particularly under the premierships of May and Johnson, and that this has had a ‘concerning impact on the judiciary’, particularly with the ‘Supreme Court departing from its previous interpretations…[and] adopting positions favoured by the executive’.

The UK’s constitution may allow for the blending of the executive and legislative branches – even if it does not, as Lord Frost tried to argue in evidence this week, force the legislature to toe the executive line – but it does not permit the judiciary to be similarly co-opted.   According to the All-Party Parliamentary Group (APPG), this is what successive governments have repeatedly tried to do, pushing the courts towards more pro-government positions.  Such impropriety has not been confined to the Conservative party, with the APPG noting that it began under Tony Blair, with his ‘tough on crime’ policy leading to ministers criticising criminal sentences and asylum decisions. Nonetheless, it has accelerated in the last twelve years of Tory rule – particularly since the Brexit vote in 2016.

In a chronology tracking the relationship between the judiciary and the government, the report notes how May, then Home Secretary, claimed that judges were ‘subverting democracy’ in 2013, while her ministerial colleague and then Lord Chancellor, Chris Grayling, described judicial review as a ‘promotional tool for left-wing campaigners’. Such attitudes, while conceivably part of the rough and tumble of politics, have hardened over the years, forming part of government policy. In 2014, David Cameron’s government removed legal aid from many judicial review cases, and took huge chunks out of the criminal legal aid budget, while Boris Johnson has launched two reviews, the Independent Review of Administrative Law and the Gross Review on the Human Rights Act.  Both concluded that the law was functioning as it should- to the displeasure of the government, with the then Lord Chancellor, Robert Buckland, suggesting there would be further reform.  This was in part justified by misrepresenting the Report’s findings, falsely claiming that they had concluded there is a ‘growing tendency for courts to…review the merits of the decisions themselves’.

As the APPG found, while many ministers and government advisors may have confined themselves to just misrepresenting judicial decisions, others launched into personal attacks and outright threats.  Boris Johnson threatened judges with ‘consequences’ for their ruling against his prorogation of parliament, while Dominic Cummings, then Johnson’s key adviser, ‘[wanted] to get the judges sorted’.  And while it is understandable, even if still undesirable, for ministers to act in this way, what is even more damaging is how the government’s law officers have preferred to play politics rather than uphold their constitutional role, as Sir Jonathan Jones, former Treasury Solicitor, told the APPG.  Both the Attorney General and the Lord Chancellor – originally legal, rather than political, roles – have ‘become politicised’. Rather than uphold their respective roles as ‘legal advisor’ and ‘guardian of the rule of law’, they have gone on the offensive against the judiciary, ‘not properly discharg[ing] their [legislative] duties’.

If the consequences of this shift had been confined to the political sphere, it would have been unfortunate, but not devastating.  Instead, as the APPG and as other commentators, including myself, have frequently noted, this rhetoric seems to have turned the judiciary’s head.  In the UK Judicial Attitudes Survey 2020, 94% of the judiciary said that they were concerned about the ‘loss of respect for the judiciary by the government’, while Aidan O’Neil QC, one of the most frequent  barristers to appear before the Supreme Court, told the APPG that ‘the [Supreme Court]…now favours government power over claims of individual rights’.

To this end, the Supreme Court has increasingly departed from precedent, such as in SC v Work & Pensions Secretary, where it overturned the presumption that ‘judges can take into account rules of international law’ in interpreting domestic law.  Similarly, in Elan-Cane, where Lord Reed ruled that the court could not go further than the European Court of Human Rights on ECHR questions, departing from the precedent that they did not have to ‘slavishly follow’ the ECtHR’s case law.  And where the court has not departed from precedent, it has tended to overturn decisions of the Court of Appeal that have taken a more antagonistic approach towards the executive, like in Begum, instead insisting that on questions of national security, the justices must ‘take the executive at its word’.

The behaviour of many of the Conservative MPs, and hopefully of the electorate, should they hand two by-election defeats to the government in the coming weeks, shows that the political constitution is not dead.  Should the cards fall favourably, perhaps with a Select Committee taking up the question of judicial independence as well, Johnson will be booted out of office, and the parlous state of the UK’s constitution returned to an even keel.  But as the report shows, if the political branches do not suppress the latent authoritarianism of Johnson’s premiership, there is little hope of the courts riding to the constitution’s rescue.