One potential upside of a change of leader is the chance for a change of course on ill-conceived parts of the current Government’s agenda. An obvious candidate for this treatment is the ‘Bill of Rights’.
Back in June, I wrote about the problems with the approach taken in this legislation to trying to deliver some of the reforms to our legal orders for which Conservatives have been aiming for so many years.
Principally, there is a gap between the useful parts of the Bill – a set of quite tightly-focused and technical reforms – and the sweeping approach of its construction and the surrounding rhetoric. It is not really a ‘British Bill of Rights’, but an amended Human Rights Act, with some extra clauses tacked on which are likely to be troublesome in the future.
Writing in yesterday’s Daily Telegraph, Robert Buckland reiterates this case:
“Some of the Bill’s provisions unduly raise expectations, such as those relating to overseas jurisdiction and the worrying issue of lawfare and our experience in Afghanistan and Iraq. The reality is that these provisions will only be effective if there is reform at an international level.”
He also points out, not unfairly, that the House of Lords could well give the Bill a lot of trouble in its passage through Parliament, as their lordships might not feel bound by the Salisbury Convention to defer to manifesto commitments.
A change in leader would be a welcome opportunity to step back and rethink. With limited time and political capital available before the next election, the court reform effort could be much more usefully focused on other parts of the agenda.
First amongst these would be Dominic Raab’s apparent push, reported via documents leaked to the Guardian, that the Government finally intends, amongst other mooted reforms, to start addressing individual problematic cases:
“Finally, it suggests “addressing” named individual cases, including Privacy International, which determined that the secretive investigatory powers tribunal was subject to judicial review, and the Guardian’s successful attempt to get secret letters written by Prince Charles to government ministers published. In the latter case, the supreme court ruled that the attorney general could not block publication just because he disagreed with the upper tribunal’s decision to permit it.”
That paragraph needs a little decoding. The first case mentioned, Privacy International, relates to the ongoing constitutional turf war over so-called ‘ouster clauses’, i.e. a piece of legislation which excludes something from judicial oversight. Parliament has every theoretical right to do this, but the courts have a habit of interpreting these out of existence.
The second case about Prince Charles, more widely known as the ‘black spider letters’ case or more properly Evans, wherein the Supreme Court effectively interpreted out of existence the provision of the Freedom of Information Act which gives the Attorney General the discretionary power to block disclosures.
In the article, this is rather cutely phrased as that he “could not block publication just because he disagreed with the upper tribunal’s decision to permit it”. But what the Guardian neglects to mention is that Parliament had legislated to give him precisely that power. (You can read more on this from Adam Tomkins here.)
If Raab really is looking into this, it is a very welcome development. There are plenty of other cases – the Judicial Power Project lists 50 – which saw problematic rulings and could usefully serve as jumping-off points for legal reform.
Such a granular approach is much more likely to deliver the goods, over the long term, than shouty, sloppy, big-bang reforms made with an eye on the headlines. Here’s hoping the new leader, whoever they are, shifts the focus of constitutional and courts policy in this direction.
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