A new Constitution Unit report by Meg Russell, Hannah White and Lisa James, published jointly with the Institute for Government, provides a menu of constitutional reform options ahead of political parties’ manifesto preparation. Its chapters appear on this blog throughout August, with this fourth excerpt identifying potential changes relating to the courts and the rule of law.
Recent years have seen growing scrutiny of the relationship between government, parliament and the courts, and the government’s attitude to the rule of law. Politicians have increasingly tended to push back against courts – which are said to have become too powerful in our constitutional arrangements, leading to a ‘democratic deficit’. Resistance to the European Court of Justice and the European Court of Human Rights seems to have evolved into a more general willingness to breach, or risk breaching, international law. Added to this have been disagreements over the appropriate bounds of legal scrutiny, with the government’s increasing use of ouster clauses – which exempt certain decisions from judicial review – attracting particular attention. And legal funding and administrative challenges continue to fuel expert concerns about access to justice. In this climate, the role of the government’s law officers, such as the Attorney General, in upholding the rule of law has come under increasing attention. These tensions have boiled over at times into very public attacks by ministers on judges and lawyers.
This is an area in which there could be significant ‘quick wins’ through communicating a change of attitude. Beyond this, various proposals for change have come from external expert bodies and parliamentary committees for improvements to the system. Such reforms – some of them quite minor – could help to settle the relationship between the political branches and the courts. This would help uphold the UK’s reputation as a bastion of the rule of law – with all the international political and economic advantages that confers. There are also proposals for wider-reaching policy change.
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