Parliament has the right to reverse judicial decisions, but governments must be careful not to undermine the important role the courts play as a check and balance in our unwritten constitution

The Independent Review of Administrative Law provoked much criticism and concern when it was announced by the government, but its final report was less radical than many predicted. In the last of our series of posts from speakers at our June conference on the government’s reform agenda, Lord Faulks speaks of the work of the review panel, which he chaired, and the government bill that resulted, which went further than the review recommended in terms of limiting judicial review.

The government has now published the Judicial Review and Courts Bill, which has had its first reading in the House of Commons and will proceed through its remaining parliamentary stages in the autumn.

The Independent Review of Administrative Law, which I had the privilege of chairing, will now be a footnote in the development of the law in relation to judicial review. The panel no longer exists and its members have returned to their normal pursuits

I would like to think, however, that we made a useful contribution to the debate. There were some commentators who thought the setting up of the review was ‘sinister’ and that our conclusions would inevitably lead to the radical reform of judicial review. I can assure those who said this that the review was genuinely independent, in the sense that we reached our conclusions entirely free from any interference by government. We were, however, influenced by the many high quality submissions that we received. Whatever our preliminary views might have been, we approached our task in an open way and without any predetermined conclusions.

The response by the government was at least initially, that it wanted to go further and it set in motion a further consultation. That was a course, it seemed to me, that it was entirely open to it.

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The anatomy of democratic backsliding: could it happen here?

The term ‘backsliding’ has been coined to describe the phenomenon by which leaders who come to office within a democratic framework, only to attack some of democracy’s core features when in office. Stephan Haggard and Robert R Kaufman outline some of the key features of ‘backsliding’, discuss how and why it can take hold, and whether there are warning signs that such a process could happen in the UK. 

During the presidency of Donald Trump, American democracy suffered the most serious challenge it has faced since the country’s Civil War. Trump and his administration inflamed divisions that jeopardise the rights of women and minorities; attacked the press; defied oversight; sought to stack the judiciary and law enforcement agencies with partisan loyalists; challenged the integrity of the electoral system, and ultimately stoked a violent challenge to the democratic transfer of power. These threats were different from conventional forms of democratic reversion, such as the coup d’etat. Instead, they reflected a more insidious process that has come to be known as ‘backsliding,’ in which illiberal leaders rise to power within a democratic framework and attack core features of democracy from within.

Because the United States occupies a unique position at the heart of the international system, backsliding there commanded worldwide attention. But the United States was hardly alone. In a new study, we identified at least 15 other countries in which duly-elected democratic governments recently moved along similar paths. Not all of these paths lead all the way to autocracy; in the United States, democracy survived the Trump era badly damaged but intact. But depending on the metric used, more than half of these cases slid into ‘competitive authoritarian rule’: systems in which elections persisted but were manifestly rigged. Notably, although many of the failed democracies we examined were weakly institutionalised at the outset (for example, Bolivia, Ukraine, and Zambia), others such as Hungary, Poland, and Venezuela were once considered relatively robust democratic regimes.

These cases raise the question of whether similar adverse developments could occur in other seemingly stable democracies. Could they perhaps even happen in the UK? 

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Sir John Laws and The Constitutional Balance

The Constitutional Balance, a new work by the former judge John Laws, was published posthumously in January. Here, David Feldman discusses the key themes of the book, and pays tribute to the author, a long-serving judge, who served as a Lord Justice of Appeal and was one of the most well-respected public law judges of the last 50 years.

The late Sir John Laws stood out as one of the greatest English public law judges of the last 50 years. Throughout his distinguished and creative career as Treasury Devil – First Junior Treasury Counsel (Common Law), responsible for advising and representing the government in a large range of public law matters – and judge, he was uniquely willing to argue publicly for and apply in his judgments a systematic philosophy of the liberal, democratic state and of the respective roles within it of the people, their representatives, the government and the judiciary. After retiring from the Bench he spent the 2016-17 academic year as A. L. Goodhart Visiting Professor of Legal Science at Cambridge. There he gave a course of 16 lectures, primarily for final-year undergraduates, entitled ‘Judicial Review and the Constitution’. In them he distilled his latest thinking on matters to which, as writer and judge, he had made distinctive contributions to our public law. These included parliamentary sovereignty and the interpretation of statutes, the importance of the common law in constitutional development, the place of human rights in the constitution, the role of judicial review, how government and judiciary should understand and give appropriate respect to each other’s different, equally legitimate roles in the governance of the country, and the proper relationship between religion and the law.

Sir John used his lectures as the basis for a book, The Constitutional Balance. Unfortunately his zest for life was severely dented by the death in 2017 of Sophie, his wife, and his physical health deteriorated. Nevertheless, greatly helped by Nigel Pleming QC, his long-standing colleague and friend, Sir John finished the text before he, too, died in 2020.

At the heart of the book lies a connection between his view of the constitution and his understanding of the human condition. Ideally, he thought, people are rational, enjoy free will (and so are responsible for their actions), are social, communing with others of their kind (pages 6-7) and have to find ways to coexist fairly with them. These characteristics demand freedom of thought and expression, and rigorous rejection of ideology (‘a preconception or preconceptions, an assumption or assumptions, not tested by reason, by argument, by practice or by results; an a priori belief, given or imposed in advance, assumed to be true’: page 2) that forecloses debate about the good and the bad, and reliance on reason and fair process to conduct and resolve disagreement (pages. 2-6 and 134-138). Sir John saw reason, fairness and a presumption in favour of liberty as key values of the common law, that unique system whereby principles and precedents are continuously tested through rigorous argument and gradually developed over centuries, and of a democratic constitution respecting the rule of law.

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