The former head of the government’s legal service has hit out at the justice secretary for suggesting judges are becoming “politicians by proxy”.
Jonathan Jones, who quit in response to ministers’ plans to break international law over Brexit, said recent comments by Robert Buckland about a new balance being needed on rule of law were “startling”.
In an article for The Independent the former permanent secretary of the Government Legal Department argued that the minister was wrong to claim the courts were straying into politics.
“Obviously it is possible to disagree with decisions of the courts in individual cases. Judges of course sometimes disagree with one another,” he said.
“I happen to agree with the lord chancellor that the Supreme Court went wrong in the [Guardian journalist Rob] Evans case on the Freedom of Information Act and the Prince of Wales’s letters, and should have given effect to the ministerial veto which parliament had created.
“But I don’t see this case, or the small number of others mentioned by the lord chancellor, as evidence of a systemic tendency for judges to overplay the rule of law, or become ‘politicians by proxy’ as he puts it.”
The lord chancellor, Mr Buckland, had claimed in a speech at University College London on Thursday that the idea of the rule of law was being used by critics of the government to “weaponise the courts against political decision making”.
The rule of law, he said, was not a legal concept, and been “the victim of conceptual creep”, leaving it open to being hijacked by “politically motivated interests”.
But Sir Jonathan said: “‘Law’ and ‘policy’ are not separate self-contained categories. Parliament and the executive use the law as a means of giving effect to policies.
“And there’s nothing new or particularly surprising in people bringing judicial review claims because they disagree with the substance of the relevant policy or its application.
“Many judicial reviews involve heavily contested areas of policy, as well as law. So it’s not realistic to suppose that the courts can somehow be ‘kept out of’ policy or politics, and I don’t suppose they feel they need to be ‘protected’ from it.”
Sir Jonathan said it was “the job of the courts to apply the law, not adjudicate on the merits of policy”, but said there was no “confusion” about this, as claimed by the government.
The government has come to blows with the courts on a number of issues in recent years, with judges often declaring government policy unlawful.
High-profile cases include the government’s attempt to prorogue parliament, and the requirements to hold meaningful votes on the Brexit withdrawal agreement.
In response, the government has unveiled plans for a bill to make judicial reviews more difficult, arguing that they should be “a more subtle tool”. It has also briefed newspapers that it plans to make it harder to crowdfund legal challenges against government policy.
Sir Jonathan resigned from his government role in September last year. Friends and colleagues said he had clashed with ministers over their intention to break international law by overriding parts of the Brexit withdrawal agreement.
Mr Buckland concluded his speech at UCL this week by saying: “My aim is quite simple: to protect the courts from this unsatisfactory state of affairs and to prevent them from being dragged into politics by another name.
“As a former part-time member of the judiciary, I think that is a noble endeavour. As a member of this government, I believe it can restore the balance that we have always managed to maintain in the past – without losing one of our most important checks on the power of the state – and I am interested to hear your thoughts.”
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