Another aspect of this dreadfully poor @Policy_Exchange paper that is worth pointing out.
There is an excited discussion of SC and other court decisions that find that the Govt has over-interpreted broad powers given to it by Parliament. (Unison and Evans are both examples of this.)
The paper concludes - as if this was something new and and an innovative assertion by Parliament - that Parliament should grant the executive clearer powers that clearly extend to cover the case.
(In the Unison case that would mean staring clearly that tribunal fee levels could be set at a level that restricted access; and in Evans that Ministers could overturn judicial decisions.)
But none of this is startling or reveals a problem with judicial review.
In our system a large part of the point of judicial review is to stop Government pushing at the boundaries of vague powers it has persuaded Parliament to give it.
Often in the context of explicit or implicit assurances as to how the power would be used (“of course we wouldn’t use the power to do X”.
JR helps keep government honest. If it wants power to do drastic things that cut across principles the government (talking out of the other side of its mouth) claims to respect (rule of law; human rights) then it should front up to Parliament and the public as to what it’s doing.
If it tries to abuse powers it has already been given for wholly unanticipated ends, or to sneak powers past Parliament on the basis of vague assurances, it shouldn’t be surprised if it is pulled up by the courts.
And we should support the courts in a task that, far from harming democracy and accountable government, defends and promotes those values.
Indeed, by proposing to weaken our ability as citizens to challenge (usually barely scrutinised) statutory instruments on human rights and other grounds, @Policy_Exchange is attacking the values of democracy and executive accountability to Parliament that it purports to support.
So the name of the so-called “Judicial Power Project” disguises its object: it is, in reality, the Executive Power Project.
