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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How do you solve a problem like judical review reform?

The Independent Review of Administrative Law (IRAL) announced last autumn has been much criticised for both its remit and its process. Joe Tomlinson and Lewis Graham offer an early assessment of the review, highlighting the flaws in its conception and design. They also acknowledge that the recently announced review of human rights seems not to be repeating the mistakes of IRAL.

In our constitutional system, it is a reality that central government wears two hats in relation to the judicial review system: the actor chiefly responsible for the design and management of the system in practice and the key ‘repeat player’ defendant. It is almost inevitable that, from time to time, tensions will result from this arrangement. Indeed, the UK has a rich history of governments of different political stripes ‘clamping down’ on the judicial review system and ‘striking back’ against specific court judgments. When such moments occur, they understandably provoke a form of constitutional anxiety that is familiar in the UK: a sense that the government is allowed to mark its own homework (or at least to exercise influence over the marker). While cyclical anxiety about the position of judicial review and looming reforms may be better understood as a feature not a bug of our contemporary system, startlingly little attention has been paid to the issue of how reform to the judicial review system ought to be considered. 

The importance of the reform process adopted was on display recently when, after being on the wrong side of a series of high-profile court cases, the government announced that the time was right for a new wide-ranging reconsideration of judicial review. It was clear immediately that this review—styled the Independent Review of Administrative Law (IRAL)—promised to be the most expansive policy examination of judicial review in decades. It is chaired by Lord (Edward) Faulks—a former Conservative Justice minister and now a crossbencher in the House of Lords—and constituted of a small group of academics and practitioners. Six months or so later, there has been much angst about potentially regressive changes being proposed and the defence of the current system has been robust. However, at the same time, many have been pointing to what they perceive to be significant deficiencies in the reform process. Features of the IRAL process which have drawn criticism include:

  • Confusion over the parameters of review: IRAL’s formal Terms of Reference have been described by Mark Elliott as ‘replete [with] syntactical errors’ and commentators have drawn attention to a number of ambiguities relating to the scope of the Panel’s mandate. For example, whilst the Review’s Call for Evidence confirmed that it was ‘considering public law control of all UK wide and England and Wales powers only,’ it seemingly left open a number of questions as to how any proposed changes to the law would affect devolved institutions (see here, here and here). The consultation also contains a paucity of relevant information, in contrast to previous consultations, which included details of the specific proposals and empirical data being considered. 
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Miller 2/Cherry and the media – finding a consensus? 

thumbnail_20190802_092917.jpgprofessor_hazell_2000x2500_1.jpg Despite the UK Supreme Court managing to find unanimity regarding the legality of the attempted prorogation of parliament in  September, the rest of the country, including its national newspapers, appeared to divide along Leave/Remain lines regarding the correctness of the judgment. Sam Anderson and Robert Hazell analyse how the national press discussed the political and constitutional questions raised by the judgment.

The government’s resounding defeat in the Supreme Court is one example of the rolling constitutional drama that breaks in the news almost daily. However, when it comes to media coverage of these stories, the key consideration is almost always ‘What impact will this have on Brexit?’ Issues are reported through the Leave/Remain divide, with popular news outlets framing events for their audiences. This post seeks first to examine the extent to which this has occurred with the prorogation case by looking at eight national newspaper editorials, and the way they have framed the political implications of the judgment. Then, using the same editorials, we will examine whether there is consensus around important constitutional issues that have arisen in this case, such as the proper role of the Court and the importance of the independence of the judiciary. We coded the editorials on both these questions, and found that the case was framed by almost all the papers to some degree through a Brexit lens, and that there is a lack of consensus on the constitutional issues.  

The political questions

The first issue was coded on a scale of -5 to five. Zero reflects the position of the Court: that the judgment concerned the specific prorogation issue, but was neutral with regards to the political implications of the decision. Editorials which argued the judgment would have negative political implications for the government and the Brexit process were assigned a negative number up to -5, depending on the extent they engaged in direct criticism of the judgment, and promoted the government’s policy of getting Brexit done. Editorials that argued that the judgment would have positive political implications for the government and Brexit process were assigned a positive number up to five, depending on the extent to which they were directly critical of the government and its Brexit policies. All eight articles were independently coded by two researchers. Where discrepancies occurred, a mid-point was taken. 

Paper Implications for Brexit 
Sun -5
Mail -4
Express -2
Telegraph  -1.5
Times  0.5
FT  2
Independent 3
Guardian  4.5

 

Looking qualitatively, there were three overarching positions taken. Of the eight publications, four were critical of the judgment and its  potential political implications. The Sun described the Prime Minister as the victim of a ‘staggering legal coup and accused the Court of having done the bidding of Remainers. The Daily Mail was less virulent, but still argued the case was a victory for Remainers, and emphasised how the judgment allowed MPs (including ‘masochistically intransigent Eurosceptic zealots) to continue to try and block the will of the electorate. The Daily Express was less direct but warned politicians that the case should not be used as a way to try to avoid Brexit. The Daily Telegraph made the only substantive comments on the case, noting pointedly that the Supreme Court overruled the High Court’s finding of non-justiciability, and gave some explanation for the prorogation: the government had only been ‘trying to carry out the democratic will’ of the people as expressed in the referendum.  Continue reading