Thread by @GeorgePeretzQC

A couple of thoughts about this proposal, floated in today’s Times, for an annual “‘Interpretation Bill’ to strike out findings from judicial reviews with which the government does not agree”. thetimes.co.uk/article/boris-…

As written, that sentence raises more questions than it answers. What is meant by a “strike out a finding”?

If “finding” means “a ruling about what the law is” and “strike out” means “change the law” than that is not exactly revolutionary. If judges rule that legislation means “X” but Parliament doesn’t like X, then Parliament can change the law. (This happens all the time in tax law.)

The novelty would appear to be that there would be an annual Bill that would be a vehicle for such things (just as the annual Finance Bill is a vehicle for changing tax law when it’s been interpreted in a way the government thinks problematic).

One wonders whether there’d be enough to fill it: one reason why “controversial” rulings aren’t *already* “corrected” is that writing down in statute what the government wants in terms of a “correction” is often either hard or looks hopelessly unattractive or both.

(Eg the problem with changing the ruling in Evans - that there was no power to overrule the courts’ judgment on the public interest balance in FOI cases, is that you have to write a clause making it crystal clear that the government could overrule the courts.

Even in this Parliament, such a clause - an attempt at which has been prepared by the “Judicial Power Project” might well get a rough ride.

And if you want to “correct” Unison then you need a clause that frankly explains that fees can be set so high as to unreasonably limit access to justice (again, the JPP obliges). Again, even the current Parliament might choke on that one.

But it’s hard to object, on constitutional principle, to the idea that Parliament should be given the chance to change the law when judges have interpreted it in a way that Parliament thinks isn’t satisfactory.

(One of the serious, perhaps even fatal, structural problems with the US Constitution is, after all, that it’s just too hard to reverse by democratic means a judicial interpretation of the constitution that is hopelessly unsatisfactory.)

If this *is* the government’s idea then the vital thing to look out for is any idea that ministers get a new power to “correct” judicial interpretations without going through the normal legislative process. That would be an unacceptable augmentation of executive power.

But the hapless phrase “strike out findings” in the Times article might mean something else. Any attempt to correct findings of fact or applications of the law to particular facts (eg to “strike out” a finding that a decision was tainted by apparent bias) would be unacceptable.

One would like to think that even the current government would shy away from that. Unfortunately, it’s hard to be completely confident.