The protections granted to and proposed for police and immigration officials are mirrored by the extensive use of legislation by regulation, which minimises Parliamentary scrutiny, reducing political accountability for ministers; legislation which reduces the role of the courts and of judicial review in ensuring legal accountability; proposals to criminalise investigative journalists and whistle-blowers, reducing public accountability through the media, and interference with the electoral process, the most basic accountability.
In October, the Supreme Court ruled that the Home Office had acted unlawfully in imposing a prohibition on unpaid work on a migrant after a Tribunal judge had granted him bail so as to enable him to continue the voluntary work he was doing. ‘It is a well established principle of our constitutional law that a court order must be obeyed unless and until it has been set aside or varied by the court’, the court stated. Simply to ignore an order would lead to ‘administrative chaos’. What is extraordinary about this case is the tenacity with which the Home Office attempted to justify its overriding of a judicial decision it disagreed with – over six years, and right up to the highest court in the land.
The conduct of the Home Office in this case demonstrated the official contempt for the rule of law and for judicial decisions which informs government attempts to curtail the scope of judicial review and human rights law. Former foreign secretary Dominic Raab became justice secretary and lord chancellor in September. A month into his new job, he said he was devising a mechanism to ‘correct’ judicial decisions – whether by the European or British courts – which ministers believed to be wrong. Parliament can already legislate to reverse legal decisions, and has done so many times, and legal experts fear Raab wants ministers to have carte blanche to reverse unwelcome judgments – something not even Henry VIII had the power to do. Under cover of a ‘startling’ attack by former justice minister Robert Buckland on judges, calling them ‘politicians by proxy’, the government appears to want to ‘enhance executive supremacy’ by ‘treating the courts as interlopers’ and ‘reassigning a basic judicial role – interpreting the law – to ministers’, in the words of public law professor Mark Elliott. Common features in the legislation going through parliament include ignoring and/ or unilaterally rewriting international obligations; and interference with judicial independence through minimum or mandatory sentences, statutory presumptions and ‘guidance’.
Curtailing judicial review
The project of reducing the executive’s legal accountability through curtailing judicial review is under way, despite the findings of the independent review of administrative law (IRAL) that there have been ‘no new instances of judicial expansion into previously non-justiciable territory over the last 40 years’. The most controversial provisions of the Judicial Review and Courts Bill ‘attempt to limit – indeed fetter – judicial discretion and tilt it towards an outcome that reduces consequences for the state when it acts unlawfully’. The Bill would normalise the use (currently wholly exceptional) of prospective or suspended quashing orders, which involve retrospectively validating unlawful decisions, meaning no remedy for many victims of unlawful conduct. It also ousts the inherent jurisdiction of the High Court to correct legal errors in decisions of statutory tribunals (something attempted by the Blair government, defeated by a Lords’ rebellion), which would block any legal recourse if tribunals refuse permission to appeal against wrong decisions. In the field of migration and asylum rights, this is likely to leave many facing deportation to war zones, to persecution or to a lifetime’s separation from family. The proposal came from IRAL, but is based on statistics now accepted to seriously understate the success rate of such reviews. In October, former cabinet minister David Davis wrote that the Bill would ‘tip the scales of law in favour of the powerful’ and mute the voice of victims. Johnson’s attorney-general Suella Braverman meanwhile (who last year supported flagrant breaches of international law in the post-Brexit Internal Markets Bill, and voted for impunity for soldiers in the Overseas Operations Bill) used a speech to the Public Law Project to decry yet again judicial interference in ‘political’ matters, citing right-wing think tank Policy Exchange no fewer than nine times.
Dictating to judges
The Bills going through Parliament additionally contain a number of clauses which tell judges what to do and how to apply the law, trespassing on judicial functions and judges’ independence. The PCSC Bill, for example, provides minimum sentences which judges must impose for specified crimes, with any sentence below the minimum requiring rigorous justification. And the Nationality and Borders Bill goes even further in this ‘political overreach’ or trespass, dictating to immigration judges that evidence provided late by asylum and trafficking claimants has ‘minimal weight’ and ‘damages credibility’. The NBB also devotes nine clauses to rewriting the Refugee Convention, shrinking the obligations to refugees to fit this punitive Bill. In the immigration and asylum field, this kind of political interference has been going on for some time, as successive acts have told judges how to interpret rights to respect for family and private life protected by Article 8 of the Human Rights Convention. The 2014 Immigration Act also contained a statutory declaration that the deportation of foreign national offenders ‘is in the public interest’, constraining judges’ power and duty to weigh the public interest factors for and against deportation in each case.
The incremental expansion of political interference in the judicial sphere needs to be seen in the context of the closure of hundreds of courts, the huge backlog of cases waiting to be heard and the government’s attacks on the integrity of lawyers – particularly those engaged in criminal defence or representing migrants or asylum seekers. Taking his cue from Priti Patel’s and Boris Johnson’s attacks on asylum lawyers, Dominic Raab snubbed the Bar Council, failing to attend its annual conference in December or to respond to requests to meet the Bar Council chair, who had expressed concern when Raab accused criminal defence lawyers of disreputable tactics.
Whether to avoid having their wings clipped or because many senior judges are in ideological agreement with the government, several recent judicial decisions, particularly on immigration and citizenship issues, have rowed back on human rights and executive accountability. In February, the Supreme Court ruled that Shamima Begum had no right to come back to the UK for an appeal against the decision to strip her of her British citizenship, although she could not effectively appeal from the Syrian camp where she was held. Its judgment swept away two decades of attempts to balance human rights and national security and centuries of common-law jurisprudence on natural justice, ruling that the Secretary of State had the last word on issues of national security even if it caused injustice. In June, the Court of Appeal upheld the deportation to Bangladesh of an overstaying family including two British-born children aged 11 and 4, sidelining guidance that children in the UK for over 7 years should not generally be removed and paving the way for attempted wholesale deportations of people in the UK since birth or early childhood (although more sympathetic High Court judges have ordered many long residents to be taken off flights). And in July, the Supreme Court endorsed a light-touch review of Home Office policy on age assessment procedures which experts deemed inherently unsafe. But such judicial deference to the executive only encourages more flagrant injustice.
Rule by decree?
Ministers’ concern for Parliamentary sovereignty – their justification for curtailing judges’ powers – Is belied by the massive powers they have granted themselves to make laws with minimal parliamentary scrutiny through so-called ‘Henry VIII clauses’ in primary legislation, and excessive use of delegated legislation, which as the House of Lords Select Committee on the Constitution noted, ‘in effect results in a transfer of power from the legislature to the executive, enabling governments to take significant policy decisions with limited parliamentary input’. The national lockdowns and other restrictions on movement and assembly were imposed by regulations – 425 of them by October 2021. This might be understandable in dealing with emergencies, but there is no such excuse for the number and breadth of law-making powers given to ministers in the Bills currently going through Parliament.
The Police, Crime, Sentencing and Courts (PCSC) Bill alone gives ministers 62 new rule-making powers. They include powers to make regulations defining (and giving examples of) ‘serious disruption to the life of the community’ and ‘serious disruption to the activities of an organisation’ – triggers for senior police to give directions about protests, which if not complied with can lead to prison. The Constitution Committee expressed concern that the power to define a term whose function was ‘central to regulating the relationship between public protest and police powers’ was to lie with the Secretary of State. It also warned that ‘the power to “give examples of cases in which a public procession is or is not to be treated as resulting in serious disruption” comes close to a power to control and perhaps even effectively ban particular protests by discretion’. Other controversial powers granted to ministers under the PCSC Bill include making rules authorising who can disclose what information to whom for the purpose of the prevention or reduction of serious crime, and to override obligations of confidentiality; making regulations on the extraction of confidential information from mobile phones; and deciding on requirements and prohibitions to be imposed on offenders under Serious Violence Reduction Orders. These are all functions whose scope ought to be a matter of democratic debate, not ministerial diktat.
As if restricting judicial powers and evading parliamentary scrutiny was not enough, the government is planning to criminalise another pillar of democratic accountability: investigative journalism. Under the mantle of countering threats from foreign states, it has been consulting on plans for legislation which would put whistle-blowers and journalists on the same footing as spies. The Home Office claims there is now not necessarily a ‘distinction in severity between espionage and the most serious unauthorised disclosures’, including ‘onward disclosure’ in the press. The government’s rejection of the proposal by the Law Commission for a ‘public interest’ defence to charges of disclosure of protected information (whether by journalists or whistle-blowers) is based on the rationale that journalists and officials are ‘rarely if ever’ in a position to weigh the public interest against the potential damage of publication. But in a democracy, the weighing of evidence from officials and from journalists and deciding on the balance of public interests in publication and non-publication should be for a jury, directed by a judge, not for ministers, who tend to have a vested interest in government secrecy.
Eroding the autonomy of public bodies
It is not only judicial independence that the government wishes to curtail. As the next section will discuss, in the context of the ‘war on woke’, the government is trespassing on the autonomy of regulatory bodies, through (among other methods) flagrantly ideological appointments, legislation to protect ‘free speech’ and starvation of funds. Another attempted power grab in the government’s Queen’s Speech proposals for legislation in May was legislation to prevent public bodies from ‘taking a different approach to UK government sanctions and foreign relations’, by banning decisions by local authorities, universities and other public bodies to divest from or boycott goods and services from particular countries, or UK companies trading with them, unless this is in line with central government sanctions. The government confirmed in December that it would be tabling legislation early in 2022. This is primarily an attack on the Boycott, Divestment and Sanctions movement led by Palestine solidarity activists, who in 2017 won a judicial review of regulations which tried to do the same thing. A government spokesperson said ‘local boycotts … can damage integration and community cohesion, hinder exports, and harm foreign relations and the UK’s economic and international security’. Campaigners accept that in some contexts, boycotts have been racist in intent and effect (the prime example is the Nazis’ boycott of Jewish businesses), but point out that anti-discrimination legislation exists to prevent such uses of the tactic. They say an anti-BDS Bill would undermine actions to prevent or protest arms sales, climate catastrophe and human rights abuses, and is profoundly anti-democratic, reducing local authorities in particular to mere vessels of central government policy.
The other pillar of democracy is the electoral system, and the government seeks to tamper with that, too, through the Elections Bill going through Parliament, which will require voters to have photo-ID, allegedly to counter fraud (which is as rare as hens’ teeth). Election experts say the Bill is unnecessary and disproportionate. Campaigners claim its real purpose is to suppress voting among poor, black and disaffected voters, as commonly happens in the US. The Bill would also make the Electoral Commission subject to government direction, undermining its independence.
This is the third in a 5-part series, Impunity Entrenched, examining the sheer proliferation of government measures and proposals put forward during 2021. IRR Vice-Chair Frances Webber reviews Borders and Immigration, Policing, Ministerial impunity and the rule of law, Free expression and equalities, and Human Rights. Read the whole series>