Fantastic case for reining in judges

The Judicial Power Project’s latest programme of constitutional reform, published by the thinktank Policy Exchange just ahead of the Conservative conference, was remarkably ill-timed. It’s not just that there are some rather more important challenges facing the government at the moment. It’s more that the project’s call for changes to ‘buttress the traditional limits on judicial power’ followed a trio of cases in which judges demonstrated how little need there was for any reform.

Richard Ekins (pictured), the Oxford University professor of law and constitutional government who heads the project and wrote its latest proposals, wants to give ministers a ‘real discretion in making senior judicial appointments’. The law should be changed, Ekins argues, so that the lord chancellor would be able to veto the appointment of any senior judge who might ‘undercut settled constitutional fundamentals, including parliamentary sovereignty’.

Even without legislative reform, says Ekins, the lord chancellor should use ‘existing powers to refuse to appoint candidates who have cast doubt on parliament’s authority to make or unmake any law’.

This is fantasy. Despite what the justice secretary Brandon Lewis seemed to suggest at the conference, no judge denies the sovereignty of parliament. What Ekins challenges is the way some judges have interpreted legislation. And who does Ekins think should decide whether a candidate for judicial promotion had understood the law correctly? Senior judges? Or a lord chancellor such as Chris Grayling, Dominic Raab or Liz Truss? Look at the US Supreme Court if you want to see where politicising our judicial appointments system would lead.

Ekins’s main concern is about human rights law. To be fair, he accepts that Raab’s now abandoned Bill of Rights Bill would have caused problems – but only because he thinks it would have given human rights greater protection. In his view, the Human Rights Act 1998 should simply be repealed without replacement. That, of course, would not affect the UK’s obligations under the European convention. So Ekins considers that the government ‘should give serious and ongoing consideration to whether – and how or when – to withdraw’ from it.

Again, Ekins accepts that this would have domestic and foreign policy implications. Though he does not say so, it would mean leaving the Council of Europe. In the meantime, he argues, the government should not feel under any obligation to comply with ‘interim measures’ that the human rights court issued in June, stopping the UK sending asylum-seekers to Rwanda.

'Lord chancellor should use ‘existing powers to refuse to appoint candidates who have cast doubt on parliament’s authority to make or unmake any law'

There is certainly scope for improving the court’s procedures for what it regards as binding injunctions. It should name the judge who issues interim measures. Rules should set out how they can be challenged by the government concerned. They should be reviewed regularly by the court. However, the government seems content to let the ban on flights to Rwanda stand while the High Court considers the lawfulness of its policy.

Interim measures aside, how much of a problem is the human rights court? Very little, thanks to the Human Rights Act. Of more than 1,100 judgments issued last year, only five went against the UK. Adjusted for population, no country had fewer complaints before the court.

Last week, for example, the court ruled on a claim by Junior Otite, 49, a convicted criminal who had served four-and-a-half years for fraud-related offences. Upholding a decision of the Upper Tribunal in London, the Strasbourg judges ruled by a majority of five to two that his right to a family life in the UK did not outweigh the public interest in deporting him to his native Nigeria.

On the same day, the Court of Appeal gave judgment on a point of law arising from the acquittal of protesters accused of damaging a monument to the 17th-century slave trader Edward Colston, whose statue had been pulled down and thrown into Bristol harbour. The protesters argued that they had been denied their rights to freedom of thought, expression and assembly. But the lord chief justice held that their conduct in this case fell outside the protection of the human rights convention.

A couple of hours earlier, the High Court had given a ruling on custody time limits. To the government’s relief, it held that the strike by criminal barristers did not justify releasing defendants on bail.

This was a claim for judicial review rather than a human rights case. But Ekins is bothered by that too. Again, there is scope for measured reform – but Ekins wants the government to reverse the effect of recent leading cases, as well as keeping a close eye on future adverse rulings.

No such decisions emerged from the Covid-19 crisis. As Adam Wagner reminds us in his new book Emergency State, the courts blocked all attempts to challenge lockdown restrictions over the two years when they were in force.

If they had not, Ekins’s arguments might have had some force.

joshua@rozenberg.net