22nd July 2021
The great theatre critic Kenneth Tynan said somewhere that any good theatre critic can describe what the the theatre of their day was doing – the challenge was to explain what the theatre of their day was not doing but could be doing, and why.
This is the same challenge for all commentators, including those of us who seek to explain what is happening – and not happening – with law and policy.
And, as this blog described yesterday, there one thing that is not happening is the government not making a full frontal attack on judicial review in the new courts bill published yesterday.
(On this, see also Helen Mountfield QC at Prospect today.)
It is always weird when nothing happens when something is expected to happen.
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“Without venturing for Scrooge quite as hardily as this, I don’t mind calling on you to believe that he was ready for a good broad field of strange appearances, and that nothing between a baby and rhinoceros would have astonished him very much.
‘Now, being prepared for almost anything, he was not by any means prepared for nothing; and, consequently, when the Bell struck One, and no shape appeared, he was taken with a violent fit of trembling.’
– from A Christmas Carol by Charles Dickens
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Law and policy commentators were yesterday expectant of a rhinoceros, if not a baby.
So what was finally published – a mild piece of legislation – has given us a fit of trembling.
What have we missed?
And what can explain what happened?
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So far there are three broad theories.
The first is that this is a political false flag.
That the government has an illiberal plan – but for some reason is misdirecting us with this bill.
And indeed, as the eminent admiralty law jurist Gial Ackbar once averred, some things can be a trap.
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Could the ministry of justice really be planning to introduce a raft of amendments late in the passage of the bill, so as to force illiberal measures through?
One would hope not – and one expects ministry of justice officials and lawyers to have more dignity than their home office counterparts.
And – in general terms – bills often start off more contentious than they end, so it would be unusual for such a game of constitutional bait and switch.
That said, one should not let one’s laser field down: this government will seek to be illiberal if it can get away with it.
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If it is not a trap, there are two other possible broad explanations.
One is that put forward by this blog yesterday – which I will call the DAG theory, if only to distinguish me from Ackbar.
This theory is government-facing – and goes to the notion that there is (or was) actually a problem of judicial activism being a myth.
I first put this argument forward in my Prospect column last year, where I set out why there was a discrepancy between the (supposed) fears of the government (and its political and media supporters) and the reality of mundane administrative law decisions.
It would thereby not be a surprise that when the government came to actually legislate – rather than speechify – there was no real problem to solve with primary legislation.
The government had walked up a stair and passed a problem that was not there, and the problem was not there either yesterday, and indeed it had gone away.
If so, this is a similar to previous situations, where the government has sought to ‘reform’ the human rights act or to deal with ‘compensation culture’.
It is always difficult to make laws against turnip-ghosts.
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But there is a third theory, which you may find more plausible than either Ackbar’s or my own.
And that was put forward on Twitter by Alexander Horne.
Instead of my government-facing explanation, Horne argues that it is the policy of the courts that has changed.
And that because there is now no problem of judicial activism, it follows there is no need for a solution.
Isn’t the answer here that the Government has changed the direction of travel of the Supreme Court, without the need for legislation. The recent judgment from Lord Reed in the child benefit cap case shows a distinct change of tone from what you saw from the Hale led bench…
— Alexander Horne (@AlexanderHorne1) July 22, 2021
If the court has retreated from that approach then what incentive is there for the Government to introduce draconian reforms? As it is, I note that the Bill would still reverse the Cart judgment & allow for the limitation or removal of the retrospective effect of quashing orders
— Alexander Horne (@AlexanderHorne1) July 22, 2021
Horne makes good points.
There is certainly a shift in the supreme court under the new president Lord Reed – and Reed is, as this blog set out in a previous post, a judge who can write that judges should give the assessments of the home secretary more respect with a straight face.
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Where Horne and I agree is that there is currently no problem of judicial activism that needs solving – the difference between us is that I aver it was a turnip-ghost all along.
Whichever theory is correct – Ackbar, DAG or Horne – there will be some commentators and campaigners who will contend that even the two proposed reforms are too much, and that they must be opposed loudly and brashly, and deploying the language of constitutional conflict.
But a good advocate knows that one should choose one’s battles.
The government’s proposals should still have the benefit of anxious scrutiny – just in case Ackbar is correct.
But one should be wary that the language of fundamental opposition to the government be devalued, for if is wasted here then it will have less purchase when it is needed.
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A final word to the Judicial Power Project – a group with the strange view that the primary problem in the United Kingdom constitutional is judicial power and not the lack of checks and balances on either the executive or the legislature.
Interesting to note that the MoJ press release chose to highlight this somewhat lukewarm endorsement from Ekins, of the Judicial Power Project (sometimes referred to as the Executive Power Project). pic.twitter.com/iFgbaEIhJy
— George Peretz KC 🇺🇦 (@GeorgePeretzKC) July 21, 2021
It would appear that the Judicial Power Project are underwhelmed with the reforms they have so long campaigned for.
You would need a heart of stone not to laugh.
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The third theory is very plausible in that it’s a return to how it has always been from a temporary blip of activism.
Barring a few exceptions the top men (and now women) in the judiciary who have huge unseen influence in so many ways have always been very carefully selected as being “sound” and “a safe pair of hands”.
In my long academic career I soon discovered that Departmental Chairpersons who combine a Professorial role and an executive administrative role including recommendations for tenure are carefully selected by the University executive for their proven reliability in exerting downward control on their department and not as an advocate upward who makes waves.
George Peretz goes a bit further in his comments, tending to support the Ackbar theory. Referring to the JPP comments, he continues:
“Pretty clear from that that he would have wanted to go much further (and indeed at the end eggs Parliament on to go further). Not clear why the MoJ chose to highlight this less than gushing endorsement. Is it a wink/veiled threat to various audiences that more may follow? Or are we supposed to be reassured by how “limited” all this is?”
We have been warned.
I could offer a forth theory.
It was a shot in the dark( a Warning) intend for those who may oppose
the view that there is a distinction between Politics and Law.
And that the jurisdiction should keep out of politics.
A concept so alien to me, that I hardly could put it into words,
what I find wrong with it. something to do with separation of Powers but never mind.
I will miss this level of debate when I leave this country, after 27 years, next month. The advantage of the internet is that I’ll be still able to follow, although it’s relevance to me personally will be diminished.
There is a fourth theory, which may better reflect the government’s approach.
This approach suggests that the government is taking an incrementalist approach towards long term reform. The limits to the pace of reform are public discourse (our old friend the Overton Window) and public resistance. Judicial reform is only one of many goals this government is pushing behind a facade of amiable incompetence.
The recent deterioration in government polling among ABC1 graduate voters suggests the pace of reform will slow.
One could suggest that attempts to create public acceptance for the legal reforms you rightly fear have not ‘cut through’. Or perhaps that political capital needs to be conserved amid our current Covid-19 social experiment.
I note in passing that attempts to create a broad based wave of support for passing a raft of disparate reforms – the real end goal of the Culture War schtick Mirza’s hubby is peddling – have failed to gain traction. (The UK’s traditional pragmatic scepticism towards political philosophies of the right or left remains a rock upon which US funded news channels break).
You can expect Ekins and friends to continue – they are functioning like a right wing lobbying group, akin to Human Rights Watch (back in the day).
Perhaps – if you want a snappy meme – you could suggest that Priti Patel has merely told the legal profession “I’ll be back”. Whether she shares other characteristics with The Terminator – in terms of relentlessness, tirelessness or her willingness to listen to reasoned, I’ll leave up to you.