Where is the UK heading – a warning from history?

“After Brexit we also need to look at the broader aspects of our constitution: the relationship between the government, parliament and the courts; the functioning of the Royal prerogative; the role of the House of Lords; and access to justice for ordinary people. The ability of our security services to defend us against terrorism and organised crime is critical. We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.”

So ran the Conservative Party’s general election manifesto (page 48). On 31 July some eight months later and as threatened, the government has set up an panel to look at judicial review (see: https://www.gov.uk/government/news/government-launches-independent-panel-to-look-at-judicial-review )

The panel will examine the need for potential reforms of judicial review as part of plans to ensure right balance is struck between citizen’s rights and effective governance. It will be chaired by Lord Edward Faulks QC, and will consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.

According to the government statement, the review will consider: Whether the terms of Judicial Review should be written into law; Whether certain executive decisions should be decided on by judges; Which grounds and remedies should be available in claims brought against the government and any further procedural reforms to judicial review, such as timings and the appeal process. The review, we are told, will examine a range of data and evidence, including relevant case law on the development of judicial review and consider whether reform is justified.

Elected Conservative leader on 23 July 2019, right from the start of his premiership Boris Johnson has been in trouble with the law. In August he unlawfully advised the Queen to prorogue parliament. When the Supreme Court unanimously ruled the advice unlawful the judges were accused of bias and Daily Mail ran the headline “ENEMIES OF THE PEOPLE” above pictures of the three judges involved.

The court further ruled that the prorogation of Parliament did have the effect of frustrating its constitutional functions; the court found that the suspension of Parliament in the prelude to the “fundamental [constitutional] change” of Brexit had an “extreme” effect on the “fundamentals of democracy”. The court also found that the Government had not provided a justification for the intended prorogation nor for its length or its effect on the requirement for parliamentary scrutiny of any withdrawal agreement under the terms of the European Union Withdrawal Act 2018.

When Parliament resumed the day after the judgement, the prorogation ceremony was expunged from the Journal of the House of Commons and business continued as if the ceremony had never happened. Johnson’s plan was to close parliament in the week beginning 9 September, and end closure with the State Opening of Parliament on 14 October. The period was in the run up to Brexit Day.

According to The Economist (20 February 2020) Prime Minister Johnson called the decision “unusual”, but a source from Number 10 was franker: the court had made “a serious mistake in extending its reach into these political matters”. Payback, it seems, is coming. The same month Johnson appointed a new attorney-general for England and Wales and Advocate General for Northern Ireland, Suella Braverman MP, who has made clear her enthusiasm for curbing the judiciary’s power. Many see this attitude as an attempt to avoid scrutiny and democratic accountability.

Two years earlier, prime minister May was also defeated at the UK’s highest court, forcing her to give MPs a vote on invoking Article 50 which kick started formal negotiations with the European Union over leaving. To her taking back control meant control by the executive, not Parliament!

So who’s who in leading the commission? Writing in The Guardian Review on 23 August (Against the law Why judges are under attack) the Secret Barrister (a blogger and junior barrister specialising in criminal law, see: https://thesecretbarrister.com/about/) commented that institutions are expected to bend to the whim of the prime minister and that the new commission would be no different. “…which is why in (Lord) Edward Faulks, the PM has appointed a chair who has not only written extensively about his own settled views on “the courts’ incursion into political territory”, but was a justice minister under Chris Grayling from 2013 to 2015 at a time when they were telling the Daily Mail that judicial review was a “promotional tool for left-wing campaigners” and legislating to restrict its use. Little surprise that he has also called for the repeal of the Human Rights Act, another constraint on ministerial caprice.”

Looking wider it’s sobering to see whose camp Johnson has set himself up in, from the Polish Law and Justice party which is seeking to remove a third of all judges, Victor Orban in Hungary removing ‘unfavourable’ i.e. independent, judges to be replaced by party loyalists and finally President Erdogan in Turkey who dismissed a quarter of all judges following the failed military coup in July 2016. All of them are in the Trump model although none have gone as far as Trump in totally overturning our limited forms of democracy. After all he is on record as refusing to confirm that, if defeated in November, he will accept the verdict of the people.  And of course the tens of thousands of US voters who have wrongly purged from voter rolls is another story that continues to emerge!

But it’s more threatening than the above. Journalist, author and playwright Francis Beckett draws even more sinister historic parallels in a recent article in Labour List (2 September 2020). Entitled Fascism is back – and yet the left are turning on each other he warns that: “Neither Britain’s Labour Party nor the US Democratic Party has yet faced up to the starkness of the choices they now have. The time for seeking the best was yesterday, and perhaps tomorrow. Today is a time for fighting off the worst. We could be about to bequeath a fascist world to our children.”

He goes on to warn that: “Take the concentration of power. Are the judges not giving the judgements we wish to have? Change the judges. Is the civil service not giving the advice we wish to hear? Change the civil service. Does the state need to award contracts? We have friends who can benefit from them. Fascists concentrate power in their own hands, attacking the separation of powers, bending the courts, parliament, the media and the civil service to their will in a way that we have not seen since the Thirties.”

He concludes: “Of course, it is not exactly the same as it was in the 1930s. Hitler wanted a corporate state. The new fascists want corporations to run the state. But fascism is back. The worst news of all is that the left are behaving very much as the left throughout Europe did in the 1930s – by turning on each other. The Communists thought the social democrats were their real enemy, while the social democrats were preoccupied with respectability…”

Is my NUJ collegaue being alarmest, going a bit over the top? I don’t think so. We need to learn the lessons from history. Those undermining democracy are at the gates, we need to get together to keep them out before it is too late. Otherwise we could be heading for the unthinkable as Francis alludes to.

 

 

 

 

 

 

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