Boris Johnson Under Fire Over 'Planned Reform Allowing Ministers to Overrule Judicial Rulings'

Downing Street's purported decision to unleash a fresh war with judges follows a number of clashes, including the Supreme Court's ruling that Prime Minister Boris Johnson unlawfully prorogued parliament amid the Brexit political crisis in 2019.

British Prime Minister Boris Johnson is contemplating further weakening the court system's power to overrule ministers' decisions via judicial review (JR), The Times has revealed.

Judicial review in the UK is a court case during which a person asks a judge to examine whether a minister, official, or public body broke the law when it comes to their decision­-making.

According to The Times, Johnson wants to curtail the courts' authority and to allow ministers to effectively throw out any legal rulings they oppose.

The newspaper quoted unnamed Whitehall sources as saying that Justice Secretary Dominic Raab has been ordered to toughen plans to reform the powers of judges to rule on the legality of ministers' decisions.

The intended goal is to reinforce parliament's sovereignty over the unelected judiciary, the sources argued.

In this Thursday, Sept. 1, 2020 file photo, Britain's Foreign Secretary Dominic Raab arrives to attend a cabinet meeting of senior government ministers at the Foreign and Commonwealth Office FCO in London.

© AP Photo / Toby Melville

They asserted that Raab along with Attorney General Suella Braverman want MPs to pass an annual "Interpretation Bill", stipulating that ministers will strike down findings from JRs Downing Street does not agree with, a plan that has already been okayed by the government.

Braverman, for her part, hinted at the measures during her message to the Public Law Project Conference in November.

"What we have seen is a huge increase in political litigation — that is to say, litigation seeking to use the court system, and judicial review, to achieve political ends. If we keep asking judges to answer inherently political questions, we are ignoring the single most important decision-maker in our system: the British people", she argued.

Prominent lawyers have, meanwhile, remained downbeat about the government's plan for the Interpretation Bill, with Edward Garnier QC, solicitor-general in David Cameron's administration, claiming that "this government seems to forget that like all of us it, too, is subject to the law".

"And I should have thought that No 10 would have learnt the lesson of the prorogation battle, when the Supreme Court reminded the government that this is a country under the rule of law and not under a dictatorship", Garnier said.

He was referring to events pertaining to a JR in 2019, when the Supreme Court ruled that Prime Minister Johnson's decision to prorogue parliament amid the Brexi crisis for five weeks had been unlawful.

UK Supreme Court building

CC BY-SA 2.0 / Cary Bass-Deschenes / Cary Bass-Deschenes UK Supreme Court building

The former solicitor-general added that if the PM "does not like a lawful ruling of the court that has been a legitimate interpretation of statute passed by parliament, it is open to the government to attempt to change the law by an act of parliament. But it is not for some here-today-gone-tomorrow minister to change permanently existing statute law by ministerial fiat".

Garnier was echoed by David Gauke, an ex-lord chancellor and justice secretary, who said that if Downing Street is considering "getting parliament to retrospectively change the law as it has been interpreted by judges, then that would be an extremely worrying step and a departure from the rule of law and the traditions of this country".

The same tone was struck by Jolyon Maugham QC, director of the Good Law Project, who insisted that "the real aim of this government is a more compliant judiciary".

"It's very important the government doesn't do anything more to weaken the delicate constitutional balance we have. This executive can and does bully its MPs to get what it wants […] All judges do is uphold the will of parliament", Maugham stressed.

The remarks come after Raab told Times Radio that he wanted to overhaul the Human Rights Act to "correct" the balance between freedom of speech and privacy, in what The Times described as yet another assault by the government on the country's "legal framework".

"I think the drift towards continental-style privacy laws, innovated in the courtroom, not by elected lawmakers in the House of Commons, is something that we can and should correct", the justice secretary said, pledging to prioritise free speech over privacy.

The interview followed Meghan Markle, the Duchess of Sussex, winning a court battle over the Daily Mail's publication of extracts of a letter to her father. Court of appeal judges ruled that Markle had a "reasonable expectation of privacy" in the contents of the letter which were "personal, private, and not matters of legitimate public interest".