Richard Ekins

The government’s inability to control our maritime border is a public scandal. Bold action is needed to make crossing the Channel pointless and put the people smugglers out of business. This will be impossible without major legal reform. So it is good news that the government is about to introduce new legislation to Parliament.  The government’s Rwanda plan was well-intentioned. However, it not supported by a legislative mandate and was, predictably, challenged in the courts. In June last year, an attempt to implement the plan was blocked by a last-minute intervention by the European Court of Human Rights. The legal challenge in our courts continues and even if the government in the end prevails, the Strasbourg Court may still say no.

Events in Birmingham this week reveal a crisis in the policing of public protest. It was no surprise that protestors would make their views loudly known outside the Conservative party conference. In exercising their rights to assemble and to speak, protestors play an important role in a democracy. But some of those attending the conference, exercising their rights to assemble and to speak, were, at times, subject to verbal and physical abuse and intimidation. They have also been exposed to levels of noise that, in certain parts of the conference centre, made it difficult for speakers to make themselves heard. The police have been curiously reluctant to act to protect attendees from abuse and intimidation, or from being silenced. The police seem terribly confused.

The Judicial Review and Courts Bill has its second reading today. Writing for the Guardian yesterday, David Davis MP denounced the government’s plans as ‘an obvious attempt to avoid accountability [and] to consolidate power’ which is ‘profoundly un-conservative’. He could not be more wrong. The Bill is a welcome first step in restoring the balance of our constitution, a balance put in doubt by a decades-long expansion of judicial power. If anything, parliament should go further and amend the Bill to make it a more effective means to restore the traditional constitution.

The return of lockdown measures across parts of northern England, as well as the announcement of dozens of new peerages, almost entirely overshadowed the Lord Chancellor’s launch on Friday of an independent review of administrative law. Lord Faulks QC, former minister of state for justice, is to lead five other barristers and academic lawyers in examining the law of judicial review and considering whether reforms should be made. This is an important development in the government’s efforts to address the misuse of judicial power and balance of our constitution.

Some human rights lawyers have warned that emergency legislation to prevent automatic early release of convicted terrorists – confirmed by Boris Johnson at Prime Minister’s Questions today – may be unlawful and will be challenged in the courts. But the warning should not deter Parliament from enacting this legislation. It is for Parliament, not the courts, to decide how best to protect the public and how to treat convicted terrorists fairly. In the wake of Sunday’s terrorist attack in Streatham, attention has rightly turned to the scandal of automatic early release of highly dangerous terrorists. Sudesh Amman, the Streatham attacker, had been released from custody in late January, having served half his sentence of three years and four months.

Who runs Britain? When Boris Johnson’s lawyers made their case in front of the Supreme Court this week, defending his right to prorogue parliament, they in effect brought it back to this simple question. This was a controversy for politicians to settle, not courts. Judges, they said, should think twice about ‘entering the political arena’ and unsettling the UK’s ‘careful constitutional and political balance’. He may be the first prime minister to frame the matter so starkly, but no previous prime minister has had to. This is about far more than Brexit. Britain is witnessing political litigation on a hitherto unseen scale. We have a government that has lost a working majority and is being forced by legislation to act against its own central policy.

The Court of Session has ruled today that the Prime Minister’s advice to the Queen to prorogue Parliament, and the prorogation that followed, was unlawful and so is null and of no effect. This is a startling – and misconceived – judgment. It does not though seem itself to recall Parliament into session, if that were even possible for a court to rule. Only a summary of the Scottish Court’s reasoning has been released, with the full judgment to follow on Friday. Meanwhile the High Court in London has today released its reasons for rejecting Gina Miller and John Major’s legal challenge to prorogation.

In our tradition, courts do not and should not stand in judgment over parliament. It is for parliament, in conversation with the people, to choose what the law should be and the duty of courts is to uphold those choices. In the years before the UK decided to leave the EU, some judges reasoned that the constitution had evolved to the point where parliamentary sovereignty was redundant. They suggested it was time for judges to assert a power to quash laws they thought were unjust or unprincipled. Their view was always legal nonsense, and it is very unlikely that a British court will attempt to strike down a statute anytime soon.

Faced with the prospect of the UK’s departure from the EU, some Britons are contemplating urgent measures, whether applying for an Irish passport or migrating to New Zealand. Nothing wrong with either, of course, but the latter is an odd reaction. After all, one of the implications of Brexit is that it restores the fundamental similarity between the structure of government in the UK and New Zealand, the last two bastions of the Westminster constitution. In both countries, parliamentary sovereignty is fundamental and judges do not reign supreme. EU membership has long complicated this picture, with the UK subject to binding European law, enforced by the confident and inscrutable – not to mention largely unaccountable – Court of Justice.

A key question in the Brexit talks is how any deal between the EU and UK will be upheld. The government has begun to address this today, publishing a paper on enforcement and dispute resolution. One thing is clear: ministers are committed to extricating the UK from the jurisdiction of the European Court of Justice (ECJ). In fact, the main point of the paper could be summed up as spelling out why Britain cannot agree to the ECJ being the arbiter of any Brexit deal. The government is entirely right about this. Sovereign states do not and should not enter into agreements in which the meaning and effect of the agreement is settled by the courts of the other party. The reason is obvious: one party would be at the mercy of the other.

In widely reported remarks earlier this week, Lord Neuberger, the outgoing President of the Supreme Court, called for Parliament to tell our judges very clearly how rulings of the Court of Justice of the European Union (CJEU) are to be dealt with after Brexit. Lord Neuberger’s concern is to avoid judges being left without guidance, required simply to do as they see best, which might invite the unfair charge that they are choosing to make law, whereas in fact they would have been left with no alternative. This concern to leave political questions to the political authorities, echoed in a recent speech by the outgoing Lord Chief Justice, Lord Thomas, is welcome.

The Government has set out the White Paper in advance of its proposed Great Repeal Bill.  The Bill is not necessary for the UK to leave the EU.  The Prime Minister has triggered Article 50, relying on the European Union (Notification of Withdrawal) Act 2017, and the UK is now on its way out of the EU.  When the Article 50 process ends, the EU Treaties will cease to apply to the UK.   The expiry of the Treaties will change UK law in significant ways.  The Great Repeal Bill is intended to minimise legal discontinuity and to maximise certainty for business and citizens.

The Supreme Court has today rejected the Government’s appeal from the High Court judgment by a majority of eight justices to three.  The decision means that a new Act of Parliament will now be required before the Government may lawfully trigger Article 50.  However, the Court has also unanimously dismissed the devolution challenges, which argued that the consent of the devolved legislatures in Scotland, Wales and Northern Ireland was a constitutional precondition to Brexit. The judgment is obviously important, but perhaps less important than once assumed.  The litigation was launched immediately after the referendum.