Boris Johnson’s reforms would allow ministers to overturn judicial decisions they don’t like, according to claims today.
According to reports, the government may be looking at a system that will allow for annual legislation which would override any judicial review of policies.
The legal community was outraged by the idea, accusing it of being a war on judges’ powers.
Justice Secretary Dominic Raab and Attorney General Suella Braverman are looking at the option of passing a yearly ‘Interpretation Bill’ to counter unhelpful rulings, according to The Times.
It is thought that No10 supports the approach. Supporters insist that parliament must have supremacy over non-elected judiciary.
Senior Tories have been critical of the idea, though details remain unclear. Edward Garnier QC (solicitor general during David Cameron) raised concern that ministers could be given the power to alter statute law.
Under reforms created by Dominic Raab and supported by Boris Johnson, ministers may strike out any judicial rulings that they disagree with.
The Supreme Court declared that the proroguing of parliament five weeks before Brexit was illegal in 2019.
He said, “This government seems not to remember that, like us all, it is also subject to the laws.”
“And I thought No.10 would have learned from the prorogation battle when the Supreme Court reminded it that the country is one under law, not dictatorship.”
Garnier stated that if the prime minister disagrees with a ruling by the court, which has been a valid interpretation of statute passed in parliament’s name, the government can seek to alter the law through an act.
“But it is not the ministerial mandate of some minister to modify permanently existing statute laws.”
The Times quoted David Gauke, former justice secretary: “If the government considers getting parliament to retroactively modify the law as it was interpreted by judges then that would represent an extremely worrying step. It would also be a deviation from the rule law and traditions of the country.
In the past, Mr Johnson had a lot of disagreements with the judiciary. The Supreme Court in 2019 ruled that proroguing Parliament for five weeks before the Brexit deadline was illegal.
The latest ideas are apparently too late to be included in the current Judicial Review and Courts Bill, but could reportedly be brought forward separately next year.
According to a Ministry of Justice source, they are focusing on the Bill.
The speculation came after Mr Raab vowed yesterday to stop Britain’s ‘drift’ towards continental-style privacy laws.
He stated that he would like to see the Human Rights Act rewritten in order to ‘correct’ the disparity between privacy and speech.
After criticisms about the outcome of a legal dispute between The Mail on Sunday and the Duchess Sussex, he has made his comments.
Over a letter that she had written to Thomas Markle, Meghan’s estranged father, the Appeal Court held last week that Meghan had an’reasonable expectation’ of privacy.
The proposed changes do not address that situation, but Mr Raab stated that proposals would be made within the next few weeks to refocus the attention on freedom of speech, which has been a priority in British law.
“We are finalizing the consultation. Times Radio reported that he wanted to revise the Human Rights Act.
“There was a lot of talk in Sunday papers about privacy, free speech, privacy, and the judges-made privacy laws we have seen in this country during the past years.
‘Part of that’s been the EU – the right to be forgotten. Strasbourg case law is part of that. We have in this country a long tradition that values free speech and debate. That’s something I believe is pro-freedom and we will look into it.
At present, under the Human Rights Act, judges have to abide by rulings of the European Court of Human Rights in Strasbourg, France – and Mr Raab said that had contributed to a drift towards a privacy law. If such a law were to be introduced, he said it would need to be determined by MPs rather than judges case-by-case.
According to the Justice Secretary, “The British tradition,” if one looks back at John Locke and John Stuart Mill, it is clear that there has been a greater emphasis on freedom of speech, transparency, accountability, especially for politicians.
“We don’t have continental-style privacy protections. If we decided to follow that path, elected politicians should have made the decision.
“And that’s an excellent example of how we can achieve a balance with our homegrown approach rather than relying on a continental model. That’s effectively what the Human Rights Act left us with.
“Officially, but at the same, what I would like to see is a stronger respect for the democratic prerogatives that Parliament has to legislate in these areas.
Raab stated that the government wanted to find the right balance to protect people from scammers, radicalisers and paedophiles.
‘But I do think that the trend towards privacy laws continental-style, innovated in courtrooms and not by elected members of the House of Commons are something we can correct.
Legal experts warn that the Court case the Duchess Of Sussex brought against Mail’s sister title might have chilling consequences for free speech.
Downing Street too has hinted that it might take some action. When asked by reporters whether Boris Johnson thought judges had achieved the right balance between privacy and freedom of speech, a spokesperson for Number 10 said that they would carefully examine the consequences of the judgement. Like the Prime Minister, you know that a free press is an essential part of democracy. This Government acknowledges the crucial role newspapers play in holding those responsible and shining a spotlight on the important issues.
Damian Green (Tory MP and member of the Commons culture panel) stated last week: “If we want privacy legislations, they must go through Parliament. They cannot be determined on a case-by–case basis in court.
A Number 10 spokesperson said that when Boris Johnson was asked if he believed judges had achieved the right balance between privacy & free speech, the spokesperson replied last week to reporters: “We will carefully study the implications of this judgment.”