The Judge Factor: Upcoming judicial reforms suggested

March 17, 2020

3 min read

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What's going on here?

The former Attorney-General (AG) Geoffrey Cox has speculated future judges of the Supreme Court would have to be interviewed before a joint committee of MPs and Lords.

What does this mean?

The government currently plans to establish a Constitution, Democracy and Rights Commission to review the separation of powers between the judiciary and the executive – a key element in the UK’s unwritten constitution. This is seen by some commentators as the government aiming to curb judicial review, seeking revenge on the prorogation ruling last September and the more recent prevention of deportations to Jamaica. 

Phrases such as “get the judges sorted” clearly indicate an upcoming battle between the government and the judiciary. The recent cabinet reshuffle, leading to the appointment of Suella Braverman as AG, further highlights the government’s aims. In an article for Conservative Home, Braverman stated that judges have “encroached” onto the political turf and urged Parliament to “take back control”. This is in stark contrast with Cox’s views, who stated that politically appointing judges was off the table and that there should be no “rush headlong into impetuous reform”.

What's the big picture effect?

With Cox gone and his successor urging to take back control, it seems that reform may come swiftly but there is a danger that rushed reform could affect the separation of powers. Former Supreme Court Judge Lord Sumption recently argued in The Times that in judicial review cases, the courts are inconsistent and thus undermine democracy, which depends on Parliament being the ultimate judge of government policy – a similar view to the new AG’s. One option to prevent this overreach is that the government could produce clear legislation stating that ministers are beyond challenge, thereby preventing judicial review. This seems an unlikely option given how much it would shift the power balance in favour of the executive, but nonetheless possible.

Another suggestion is changing judicial attitudes. Common Law develops in small steps through individual judgments, with each judge’s attitude often being the key in driving or hindering advancement in the law. Cox’s proposal of interviewing candidates would ensure the law develops in the way the executive wants. This would mean the end of judicial independence and a move towards the American style system of politically appointed judges. Again, this seems an unlikely option; it would be arrogant of the government to assume they will be in power forever. One only needs to ask how the current government would feel if it faced a bench of judges appointed by Corbyn.

 A final point to consider is the general popularity of judges. According to research by Ipsos Mori, four-fifths of the British public trusted judges to tell the truth, whereas just under a seventh would trust politicians. It seems that if the government is to interfere in the independence of the judiciary, it is the public who will be the ultimate judges. A heavy-handed government approach will achieve little and quite likely damage the fragile balance in the separation of powers. If reform is due, what is the best way to do so – could open discussion with the judiciary be the best way forward?

Report written by Michael Johnson

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