Yesterday at Exeter University I debated the question that activist judges threaten our constitution.
Judges, by their decisions and the precedents that they set, make law. Some of those decisions are the basis of our liberty -long before anyone dreamt of the Human Rights Act.
But, at PMQs the Kemi Badenoch raised the absurdity of a Judicial decision granting a Palestinian family sanctuary in the UK under a scheme exclusively for Ukrainians.
The PM agreed, saying that the decision was wrong.
This earned an immediate rebuke from the Lady Chief Justice saying that the role of Parliament “is visibly to protect the independence of the judiciary” and that where it disagrees with judges, then the proper course is to appeal to a higher court.
The independence of the judiciary was not being questioned, merely their judgement.
In a democracy elected politicians will inevitably give vent to the frustration of their constituents when judicial decisions depart from common sense
We are now at the stage, through judicial latitude, where our proper obligation to prevent torture has come to mean any service provision less eligible than is available in the UK.
Of course the Lady Chief Justice is right that it is open to the Crown to appeal, and so many absurd rulings, which have filled our newspapers, have been appealed and overturned.
But, appeal is a restricted and uncertain option.
Parliament can legislate instead . When the Supreme court ruled that Rwanda was not a safe destination, Parliament simply legislated to change that judge-made law.
Alas, we don’t take this route often enough.
When in 2019 the Supreme Court absurdly ruled that the prorogation of Parliament was not a proceeding in Parliament, and therefore not protected from judicial interference under the Bill of Rights 1689 –“proceedings in parliament may not be questioned in any court” – they made a new law setting out a list of requirements that must be satisfied before the prorogation of Parliament can proceed . In my estimate it is a constitutional outrage and Parliament ought to reverse it. I urged Boris to do so, I told him to ‘let bygones be…his top priority’. But he bottled it.
In 2020 the courts set aside the long established Carltona principle: that a statutory power granted to the Secretary of State can be exercised his subordinates.
This opened the door for terrorists to sue for compensation because their detention orders were signed by a minister of state, not a secretary of state.
Parliament immediately legislated to close that door by restoring Carltona in sections 46 &47 of the Northern Ireland Legacy Act.
The courts vented their frustration by issuing a Declaration of Incompatibility between the Legacy Act and the Human Rights Act. But, as Jack Straw said when he introduced the Human Rights Act in 1998, such a declaration has no force, it places no obligation or expectation on Parliament to do anything about it.
After the election however, the new government announced that it would use a remedial order to strike out sections 46 & 47, opening once again the prospect of compensation for terrorists. The Prime Minister called that prospect grotesque, so I asked him why was he doing it. He said that he must, because the courts had struck down the law.
They can’t.
They have no such power
But if the Prime Minister, himself a senior lawyer, believes that the courts are entitled to strike down Acts of Parliament, then our constitution, in which the High Court of Parliament is Supreme, is in real danger.
[as an addendum. I’ve won the argument on Carltona and Sections 46 & 47 of the Northern Ireland Legacy Act. On Tuesday, the Secretary of State came to the Commons. He said that he had listened and he announced that his remedial order would keep sections 46 & 47 in place until new legislation was introduced, which would also preserve the Carltona principle.
Throughout the exchanges however, he still insisted that Parliament was bound to respond to the decision of the courts, which is plain wrong]