It has been said that the British constitution can be summed up in eight words: “what the Queen enacts in parliament is law.”
As eight-word summaries of the constitution go, that one is hard to beat. The principle of parliamentary sovereignty is ferociously powerful in our system. Parliament can make or unmake any law whatever—and no court, minister, official or monarch is empowered to ignore or override what parliament has enacted.
The government is right, therefore, that it is open to parliament to adjust the balance between the executive, legislature and judiciary, as the Conservatives promised in their manifesto. After all, parliament can do anything it likes.
Earlier this year, the government brought forward legislation for precisely that purpose: the Judicial Review and Courts Bill. When this bill becomes law, it will give judges more flexibility about what orders they make when the government loses in court. It will, for example, enable the courts to “suspend” an order quashing a government decision for a period of time, giving ministers a chance to get their ducks in a row and avoid the administrative chaos which might result if their decisions or policies were vaporised overnight.
No 10 is said to be frustrated, however, that this legislation does not clip off enough of the judges’ wings. The Times reports that there are plans to go further. A favoured option is said to be an annual “Interpretation Bill,” by which parliament would “strike out findings from judicial reviews with which the government does not agree.” Dominic Raab, the lord chancellor, has said that he does not recognise that idea, though he has trailed a similar one before, floating the creation of a new “mechanism” by which court judgments can be “corrected.”
There is nothing constitutionally outrageous about parliament passing legislation to change the law. That is, after all, its job. MPs are there to consider and debate whether the law represents the right public policy and, if not, amend it. Sometimes, that will mean intervening where parliament reckons that the courts have taken a wrong turn.
Yet there is something disturbing, still, about a plan which aims to “strike out findings” from judicial reviews—the cases brought against the executive, including government ministers. The reality is that, when the government enjoys a large majority in parliament, those ministers will have the biggest say over what gets “struck out,” even if their strikethroughs encounter some resistance in the House of Lords. If the government’s plan is to whip its MPs to rubber-stamp an annual Christmas List of particularly irritating judgments whose effect ministers would like to expunge, then that would create serious risks of unfairness, uncertainty and bad government.
It would be unfair, because the government would be coming perilously close to being the judge in its own case. If the regular tweaks had retrospective effect, the unfairness would be compounded: a prospective litigant might reasonably ask whether it was it worth going to court in the first place, given that their victory might be set at nought by next year’s list. It would be uncertain, even arbitrary, because anyone trying to work out what duties the state owes them would now, in addition to asking what the law says, need to ask an extra question: what might ministers prefer the law to say? It could lead to bad government, because it would become ever-harder for members of the public to hold the government to its legal obligations, including those imposed by parliament, if the government got into the habit of writing legislation each year to slacken any obligations that proved tricky to meet.
This does not mean that ministers should never bring forward legislation to overturn a judicial review judgment. It does mean that they should not do it lightly, or do it too much. The “mechanism” must be proper primary legislation, subject to proper parliamentary scrutiny—with no procedural shortcuts that let the battle-weary minister wield the pen. Any change in the law must be properly justified; not just by re-running the arguments that the government made and lost in court about what the law is, but by making the case, as a matter of principle and policy, for what it ought to be.
And the government should confine itself to those cases that really matter, where it has a policy argument to make and can make it in good faith. It should not indulge in constant, disruptive legislative fidgeting. A majority government in a sovereign parliament has great power. With it comes great constitutional responsibility.
