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Nicola Laver

Editor, Solicitors Journal

Senior judges 'distorting' the law

Senior judges 'distorting' the law


Parliamentarians should “act to limit judicial power and vindicate parliamentary democracy and the rule of law”, the former leader of the Conservative Party Michael Howard has said. 

In his foreword to Protecting the Constitution, a paper from leading UK think tank the Policy Exchange, Lord Howard of Lympne also suggested “parliament may need to legislate to reverse judgments that unsettle constitutional fundamentals, including parliamentary sovereignty”.

The paper was authored by Professor Richard Ekins who said it is parliament who is responsible for maintaining the balance of the constitution and should restate limits on judicial power.

Former barrister Lord Howard wrote that the existing “constitutional scheme” has been under strain for some time. 

He said: “The enactment of the Human Rights Act was significant, for it encouraged judges to shrug off traditional limits on their jurisdiction, to second-guess Parliament and confidently assert a general entitlement to address political questions. 

“In the Gina Miller Article 50 case and its recent prorogation judgment, the Supreme Court purports to take up a new place in the constitutional hierarchy, able to intervene in parliamentary politics and boldly make new law in the process.”

He added that this is “a constitutional problem which must be tackled by our new parliament and Government”.

According to the paper, parliamentarians must “act now to guard the constitution from judicial overreach, and from the instabilities and threats to good governance that result from that overreach”.

The paper outlines a plan intended to “restore the balance of the constitution” and sets out controversial recommendations which Lord Howard describes as “sensible” suggestions.

It says parliament should, for example, legislate to reverse the effects of the Supreme Court’s prorogation judgment, reverse “particular Supreme Court judgments that distort the law of judicial review”, and review the scope of judicial review and legislate to limit it where appropriate, “reversing the effects of particular judgments by legislation when necessary”.

In an interview with BBC Radio 4 Today's programme following publication of the paper, Lord Howard emphasised his position stating that judges have “increasingly substituted their own view of what is right for the view of parliament and of ministers”.

Charles Moore, who guest-edited the Today programme, asked Lord Howard: “Where have we gone wrong?”

He responded: “The question is, who should make the law by which we are ruled: should it be made by elected accountable politicians answerable to their constituents and vulnerable to summary dismissal at elections?”

He added that there has been a “considerable increase in the power of the judiciary, partly as a result of the expansion of judicial review”.

This resulting “significant increase” in judges’ powers is “at the expense of parliament and… government”.

The Conservative Party’s Manifesto 2019 pledged to “look at the broader aspects of [the UK] constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people”.

However, the Policy Exchange’s paper was mostly written before the general election campaign. 

Meanwhile, December’s Queen’s Speech confirmed that government would establish a constitution, democracy and rights commission to examine the issues. 

The Conservatives' manifesto said the commission would examine in depth the issue of judicial review.