Member Article

‘We want to take back control’ was a common refrain during the Brexit debates prior to the vote, and since remains a mantra of the UK government. Recent views expressed by the UK government raise the question of what is meant by ‘we’.

Across the Atlantic, the United States has a clear expression in its constitution – ‘We the People’. Although there are several layers of interpretation, it is this simple phrase that arguably is at the heart of the recent U.S. Supreme Court ruling which overturned Roe v. Wade. As the majority opinion states, for the Court to decide about abortion was ‘an abuse of judicial authority’. The opinion further states that ‘abortion is a matter to be decided by states and the voters in the states’. We the people. In contrast, it ruled most recently to strike down the 108-year-old New York state law that requires proper cause to carry a concealed gun, on the basis that it breached the US-constitution – a 235-year-old document that has been amended 27 times.

There being no written constitution in the United Kingdom, the role of judge-made-law is not spelled out. Judges themselves have, through practice, set the limit on their ability to engage in constitutional matters. In brief, their jurisprudence does not extend to question Acts of Parliament, and decisions by the government and its departments are treated with a lot of respect. Judicial review of government decisions occurs based on illegality, procedural unfairness, and irrationality.

Human rights law is an area of tension for the UK government with the rulings of judges. An example is the most recent rulings by the European Court of Human Rights in relation to the UK government’s recent policy of sending certain refugees to Rwanda for processing. A reaction by the UK government was pointed. The deputy prime minister, Dominic Raab, stated that the court was wrong and has strengthened the case for overhauling Britain’s human rights laws.

Back in the United States, another Supreme Court ruling, this time in relation to the Environmental Protection Agency’s powers, has the effect that the executive branch and its agencies cannot engage in rulemaking without the express provision of Congress.

The above elements identify that ‘we’ is the elected representatives. In the United Kingdom that is Parliament, but when as is common there is a single political party that holds most votes in Parliament. The ‘we’ becomes the executive, namely, the Prime Minister and the other ministers of state – a group traditionally capped at 21 people. Thus, we becomes the voice of the majority political party which becomes the voice of 21 people and ultimately one person, the Prime Minister.

The conservative party, being the ruling party, issued its last manifesto in 2019. This included the statement ‘We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.’ The former is commendable, the latter potentially problematic.

Despite the hostile attitude to judges – epitomised by the headline in the Daily Mail, that judges are the ‘enemies of the people’ when the Supreme Court ruled that the government required consent of Parliament to trigger the Article 50 notice to exit the EU – the expectation is that UK judges would conduct business as usual. However, a report by the House of Commons’ All-Party Parliamentary Group on Democracy and the Constitution, issued on 8 June 2022, reviewed the UK’s Supreme Court rulings on public decisions since 2020 and found that ‘the high number of instances in which the Supreme Court has reversed its previous position on the law, so as to adopt an approach that is more favourable to the executive, is notable’.

So, has there been a trend to limit the role of judge-made law post-Brexit? The political rhetoric is clearly to constrain the effect of judge’s rulings to the extent they infringe on the role of the government of the day (the executive). Is this just hot-under-the-collar political rhetoric or something deeper? Given statements in the Conservative & Unionist Party manifesto, probably the latter. As the manifesto states, ‘after Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts…’ In addition, it states, ‘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.’

The Conservative and Unionist Party won the last election with a large majority, so the voting public has arguably invited the government to change the way its powers and actions are bound by judges. Caveat emptor.

 

 

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