Immediate reaction to this paper by the @Policy_Exchange’s Executive Power Project.
1. The criticism of Miller/Cherry fails to front up the basic problem that led to the decision: the Government had *no reason at all* (at least one that it was prepared to state in a witness statement) for the prorogation.
Once that point is appreciated, its account of the alleged implications of the case for the use of prerogative powers can be seen to be wildly overblown. What other cases will there be where the Government produces *no reasons at all* for its action?
And if the Government is incapable of producing *any reason at all* for its action (particularly an action of constitutional significance) why should it be upheld (prerogative or no)?
2. The proposed limitation on JR is (first) simply to reverse by legislation certain decisions to which the Executive Power Project objects (Unison on Employment Tribunal fees; Evans on Ministers’ powers to override Information Tribunal decisions they don’t like).
No problem there.
Parliament can expressly agree with the Executive that the Executive should have the draconian powers that the judiciary held in those cases that Parliament had not originally given it.
Which were to impose fees that shut out access to justice; and to overturn awkward judicial decisions by Ministerial fiat.
But that is the constitution working: the judges are entitled to assume that Parliament has not legislated so as to give the Executive such powers absent clear wording that shows that Parliament really did intend to do so.
The second proposal is to write down the test for judicial review and to exclude proportionality.
Writing the test down won’t achieve much (the test will have to be at a level of abstraction that leaves ample scope for judicial interpretation).
Excluding proportionality might have an effect on the future development of JR: but since it often overlaps with other established JR grounds, the effect would be unclear.
3. Changing the name of the Supreme Court really is just pointless window-dressing, as the paper pretty well admits. As would be to return it to being a committee of the House of Lords.
4. Most sinister (because most coherent) is is the proposed power of ministers to vet judicial appointments: a power expressly stated to be used to winnow out judges whose judicial philosophy is antithetical to that of the Executive Power Project.
That proposal should be fiercely opposed: it is not consistent with the rule of law and would be a wholly retrograde step in the direction of Orban and the PiS.
Also worth reading this @instituteforgov paper. instituteforgovernment.org.uk/blog/how-will-…
Some further comments: the claim to be defending “Parliamentary sovereignty” is hollow: on the contrary, the cases complained about are all ones where the courts have refused to accept the Executive’s wide interpretation of powers given to it by Parliament (or the prerogative).
The cases should therefore be seen as ensuring that the Executive has wide powers with major impacts on people’s lives and freedoms only where Parliament has clearly given those powers to the Executive.
As to the ECHR/Human Rights Act, there is much here to object to. But I’d flag the proposal to limit incompatibility findings to areas where the Strasbourg court has delivered a “closely analogous” decision - a limitation without any principled justification whatsoever.
Why should your rights under the HRA/ECHR depend on whether someone happens to have brought an “analogous”
case to Strasbourg?
case to Strasbourg?
As for the proposal to protect statutory instruments against invalidation under the HRA, the effect is to give Ministers, without any real control by Parliament, the power to interfere as they like with your HRA rights in a statutory instrument.
Executive Power Project, indeed.
