Tories meddling with the wheels of justice … Johnson government wants to bring the Supreme Court to heel … Too much “judicial activism” … Clamping down on judicial reviews of administrative decisions … Increased statutory senility … Lord Chancellor has strange thoughts about linchpins … Janek Drevikovsky reports 

Bo-Jo and his third term Conservatives are taking aim at the Supreme Court, which has been a perennial thorn in Brexit’s side. 

The Tories want to change the name of the court, reduce its size and shake-up its procedures – all to combat “judicial activism”. 

There are also moves to change the whole system of judicial review. The government says courts are deciding on the merits of decisions, and this should stop. 

Also in the works is a plan to increase judges’ mandatory retirement to 75 and defenestrate bits of the Human Rights Act. 

It’s only been 12 years since the Supreme Court replaced the old judicial committee of the House of Lords as the UK’s final appeal court for most domestic matters.

In that time, it’s proven a nuisance to pro-Brexit conservatives. First was the 2017 case Miller (No 1), which held parliament and not the executive had the final say over whether Britain would leave the EU. 

Then came Miller (No 2), which found Borris Johnson had acted unlawfully when he prorogued parliament in late 2019, part of his campaign to frustrate anti-Brexit lawmakers in the House of Commons. 

No wonder, then, that behind closed doors, the Conservatives are considering reforms that might make the court more compliant. 

There have been no firm commitments from Lord Chancellor Robert Buckland (who sits in the House of Commons – the Chancellor is a lord in name only after the 2005 constitutional reforms). But he’s open to the idea:

“Clearly, 15 years on, it is entirely legitimate for us to consider [the Supreme Court] afresh and to see whether we can improve upon it.”

According to the Sunday Telegraph, Conservative MPs feel the court has adopted the dreaded habit of “judicial activism”. 

Leader of the Commons and unreformed toff Jacob Rees-Mogg even described the second Miller decision as a “constitutional coup”.

The mooted reforms have found no favour with the UK’s top judge, Supreme Court President Lord Reed of Allermuir.

Speaking to a House of Lords committee last week, he savaged the suggestion of a Supreme Court name change. 

“I think it would be widely perceived as an act of spite. It wouldn’t change the law or the attitude of the judges.

The idea that seems to lie behind this proposal – that calling a court a “supreme court” results in its behaving like the American one – is simply idiotic.” 

He pointed to a major difference between his Supreme Court and the one in Washington DC. He and his sibling-judges were selected by an independent committee and therefore independent. The American supremes are political appointees and therefore politicised. 

Asked whether appointing ad hoc “specialist” judges would improve the court, Lord Reed answered with a laconic “no”. 

The government’s next target is the system of judicial review, which allows courts to quash administrative decisions if they were made incorrectly. 

Recently, a House of Lords committee found that the judicial review system was, for the most part, working well. 

But the government played the spin game anyway, with the Lord Chancellor telling the House of Commons:

“The [committee] found courts were increasingly considering the merits of government decisions themselves, instead of how those decisions were made.”

The committee chair, Lord Faulks QC, himself a former conservative minister, told Joshua Rozenberg he rejected that characterisation of his findings. 

It seems the government will press ahead whatever the committee says. Two main reforms are under discussion. 

The first is so-called “ouster” clauses, which can be used limit the courts’ ability to review certain types of decisions or decisions made under a particular Act.

The government has asked for submissions on how to draft these clauses more effectively, since they have been circumvented in the past. 

Joshua Rozenberg reports that, under the government’s proposal, the courts would still be allowed to get around an ouster clause, but only if there had been an “exceptional” failure by the decision-maker, like a denial of procedural fairness. 

The second area of reform is remedies, particularly the effect of “quashing orders” (that’s certiorari to us Australian pre-Adamites, who generally retain hocus pocus legal terms long after the mother country).

Currently, quashing orders work retrospectively, undoing the decision and its consequences from the moment it was made. 

That can be an expensive affair, forcing the crown to dole out compensation and cancel contracts. Things get even messier if a whole piece of secondary legislation is invalidated. 

Now the government wants to empower courts to make prospective-only quashing orders. It’s considering a presumption in favour of prospectivity, or even a requirement that orders have only prospective effect, unless there are good reasons for retrospectivity. 

There’s also a proposal to suspend the effect of all quashing orders so parliament has a chance to consider the case and pass legislation correcting the administrative error.  

Now, in later developments it has been shown that the statistical underpinning for Faulks’ proposed reforms is “seriously misconceived”. 

The lawyers generally have welcomed moves to increase Britain’s age of statutory judicial senility from 72 to 75. 

The Lord Chancellor Robert Buckland has confirmed the legislation will be introduced “as soon as parliamentary time allows”. 

In his statement, Buckland said the change better reflected modern legal and social conditions: 

“In the 27 years since the mandatory retirement age of 70 for most judges was set, a lot has changed. 

The structure and operation of our courts and tribunals have developed, alongside the demands placed upon them. 

Meanwhile, the average life expectancy in the UK has increased significantly and a greater number of people are now working longer.”

Joshua Rozenberg praised the change:

“Many good people have been lost to the full-time judiciary in the quarter-century or so since the retirement age was lowered from 75. 

Seventy is really no age at all. It’s certainly not an age at which anyone should be forced to stop working full-time.” 

The Ministry of Justice response to the consultation can be located here. 

As if that is not too much of a full plate, Buckland in a speech on March 25 floated the idea of reviewing the office of Lord Chancellor itself. 

He was unhappy with the 2005 reforms: 

“By changing the role of the lord chancellor in the ways that the previous government did – remaining as part of the legislature and the executive but no longer the judiciary – we have lost the sense of the office being the linchpin between all three …” 

Linchpin, indeed. What on earth does he have in mind? Maybe he wants to get back to his former job as a Crown Court recorder, as well as being a minister of the crown. 

Tories. They’ll be the ruination of us.