August 2022 Newsletter Newsletter

Judges under Attack by Executive

A report by the All Party Parliamentary Group (APPG) on Democracy and the Constitution called An Independent Judiciary – Challenges since 2016 suggests improper attacks on judges threaten the constitution. The APPG argued that government politicians are misrepresenting legal rulings to their own advantage, attacking judges over their decisions and making threats about legal reform. It says that their tone and content often imply that ministers know better than judges how to determine complex issues of law – transparently, not the case. Take as an example the words of Suella Braverman, then Attorney General. She has spoken of the ‘chronic and steady encroachment by…judges’ and that in some cases they had ‘strained the principle of parliamentary sovereignty’.  

Perhaps more worrying, however, is that the APPG also felt that some recent Supreme Court cases ‘may appear’ to have been influenced by ministerial pressure. It identified seven cases since 2020 in which judges had departed from previous legal authority and ‘assumed a position more palatable to the executive’. The report states ‘in some of these, the court appears to adopt similar language to that used in the executive’s talking points. The court has decided fewer than 40 public law matters in this time, so this represents a notable portion’. It gives as an example the ruling in the case of the ISIS bride Shamima Begum. The Court of Appeal found that Begum should be allowed to return to the UK to stand trial, only for the Supreme Court to reverse this decision.  

It is worth quoting at length from the report’s foreword by APPG Chairman, Geraint Evans: ‘Our Independent Judiciary needs safeguarding…the Government is removing Constitutional safeguards both in Parliament and in the judiciary designed to protect us from any Government that puts its own power and self-interests above those it is elected to serve. At a time that our values of democracy, human rights and the rule of law are fundamentally challenged by China, Russia and most recently in India now is not the time to water them down…We should be reinforcing our values and championing them across the world and resist devaluing our sovereign currency which has stood the test of time. Democracy, human rights, and the rule of law are our fundamental values. They rely on an independent judicial system to protect the rights of the citizen from the state and to defend our democracy. However, in recent years we have seen Law Ministers including the Lord Chancellor, no longer seeing their only priority as defending the rule of law and the independence of the judiciary but also to actively promote Government interests…The courts act as a safeguard to protect our democracy and to ensure that the government acts within the law… Historically, the response of the Government being found to act unlawfully has been to correct its ways and to act in accordance with the law. However, we now see a tendency for the Government to seek to change, or threaten to change, the law or the powers of the courts instead.’ To read the report, go to https://bit.ly/3A4tiWJ

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