Making sense of the reported proposals of the government for “overhauling” the Supreme Court

16th November 2020

You would think that the most incompetent government in living memory would realise it needs the benefits of checks and balances, and of accountability and scrutiny.

You would, it would seem, be wrong.

The Sunday Telegraph yesterday had this piece, entitled “Supreme Court to be overhauled to curtail its constitutional powers”.

A tweet promoting the article said: “Telegraph reports that the government plans to bring the UK Supreme Court to heel: change the name, reduce number of permanent judges, bring in specialists – rolling back Blair era reforms.”

The news report itself is quite light.

There is no source on the record.

There is no concrete internal government document, just “plans” and “proposals”.

The only quote off the record is attributed to a “Tory source”:

“There’s a feeling that Blair and Falconer made a complete dog’s dinner of constitutional reform and that we’re feeling the negative effects of it today. 

“Just like in the US, campaigners are increasingly looking to the courts to settle political arguments and this puts the judiciary in a place most of its members really don’t want to be.”

The second sentence of the quote is interesting, as it frames the proposals in terms of the interests of the judges.

Given this framing, it should be noted that the article mentions later that the Lord Chancellor and Justice Secretary Robert Buckland “is said to see the reforms as part of his legal role to defend the independence of the judiciary, amid concerns about the perception of the Supreme Court”.

The impression is thereby given that the “Tory source” and the person describing the views of Buckland are the same person, possibly (given the conventions of political journalism) Buckland himself or his special advisers.

The rest of the piece is mainly padding and contains no interesting detail.

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So what should one make of it?

One feature is that the headline and the promotion of the article do not entirely accord with the substance of the piece, such as it is.

The import of the quoted “Tory source” and the description of Buckland’s view may perhaps be better characterised as “independence of the judiciary to be defended”.

If so, then the political significance of the report is not so much that an(other) attack is about to be mounted on the independence of the judiciary, but that this may be a preemptive effort at a defence.

Of course, the “proposals” and “plans” as reported are daft.

The Supreme Court, with its outstanding website and televised hearings, is an absolute boon for the public understanding of law.

For each appeal there are case summaries and other materials freely made available.

Instead of being hidden down some parliamentary corridor (as was the the case with the Judicial Committee of the House of Lords), the work of the Supreme Court is an exercise in transparency and accountability.

And in respect of the defeats of which the government is complaining, much of the the blame is at the feet of ministers themselves.

In particular, the prorogation case was lost by the government because not a single minister or official would put their name to a witness statement, on pain of perjury, setting out the true reasons for why parliament was closed down.

That is hardly the fault of any Supreme Court judge, or indeed of any activist lawyer.

And what would the new name of the court be?

(Also, for what it is worth, there has long been a ‘supreme court’ in England and Wales before the name was appropriated by the new highest court – it was the name by which all the senior courts went before the reform – and this caused no problems at all.)

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 Maybe one should not take a minor example of performative politics in a SUnday newspaper too seriously.

The last thing this utter shambles of a government – facing a pandemic and a Brexit when it would not be able to deal properly with either, let alone both –  is up to doing is significant constitutional reform.

But the noise is still important.

And the sound one can hear is that the government as a whole still has an illiberal temper and this indicates that, despite the reported departure of Dominic Cummings, the government still sees it as a priority that it should dismantle any parts of the state that can actually hold it to account.

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8 thoughts on “Making sense of the reported proposals of the government for “overhauling” the Supreme Court”

  1. It seems to me that the motivation for such a move might well have been that Johnson didn’t like being reminded that he was not above the law. Whilst you might argue that prorogation was a “political” rather than a legal act (if you were an over-privileged ex-Etonian with a God complex), it seemed to me that his utterances after the Benn Act loss were plainly contempt. I imagine it would be a brave judge indeed that orders the PM into a cell, but had any other mere member of the public acted in that way, they would not have enjoyed such latitude.

    I suspect Johnson’s days as PM are numbered and with his henchmen now out of the picture, cooler heads may again have sway – the problem is that the Tory Party no longer has anybody that you could seriously look to for leadership or good judgment.

  2. Ironically, given the reference to the US as justification for action here, the most recent SCOTUS hearing last week was…. the attempt by a number of Republican Attorneys General, supported by the Trump regime, to get the court to throw out, on spurious grounds, the whole of the Affordable Care Act.

    1. Addendum: And the SCOTUS looks likely to throw out this umpteenth attempt by Republicans to overthrow what the legislature has decided.

  3. Whilst I agree that we should not take this rumour of doubtful provenance too seriously, the threat to the independence of our judiciary from Tory autocrats is real. We ignore it at our peril. Much of the antipathy towards SCOTUK expressed in the Twitter thread to which you refer and generally is borne of ignorance. And the most ignorant people are too often the parliamentarians and government ministers who should know better. The availability of a legal remedy against government overreach is a cherished feature of our jurisprudence and has been for hundreds of years. I am horrified that some state officers like the Lord Chancellor and the Attorney General seem not to understand that, or worse, don’t care. As you say, the risk of this sort of tittle-tattle is that it drives the narrative that the SCOTUK is overriding our democracy; whereas in reality it is our defence against tyranny.

  4. “We must not make a scarecrow of the law, setting it up to fear the birds of prey, and let it keep one shape till custom make it their perch and not their terror.” Angelo in Measure for Measure (2.1.1-4)

  5. Is it possible that this Telegraph article was planted by one Dominic Cummings? Cummings might still have a fan base at the Telegraph – unlike his former understudy Boris Johnson, who unshackled himself from Cummings, but isn’t rated as high as he used to be by the Telegraph…

  6. Off topic but wasnt the sentence in the IMB that caused all the uproar overwriting international and DOMESTIC LAW, so a shot at the judicial System to make them look not fit for purpose in the eye of the elecorate seems reasonable from a cynic point of view. please exuse the typos english is not my first language

  7. Re the Supreme Court.

    Let’s no forget the angry Tory rattling of handbags at each case it lost in the courts, matched only by the silence with which they met each ‘victory’.

    Anything they do to eviscerate the courts they are guaranteed to spin as being entirely benign and for the benefit of the Courts.

    This feels kind the commencement of a ‘softening’ campaign, to test reactions and see how far they can push.

    It’s very worrying, in my view.

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