There is an interesting article in Prospect Magazine by David Allen Green in which he suggests that the judicial activism of the recent past is just not true and where he concludes:
So there is an artificially inflated narrative of judicial activism. The context for this is telling: there are concurrent attacks on impartial civil servants and diplomats, on public service broadcasting, even on the free press. It would seem that executive power based on a parliamentary majority is not enough: all the power of the state should be in the hands of the executive.
In these strange days, fundamental constitutional changes on the back of shallow reasoning and insufficient evidence cannot be ruled out. And there will be those who will clap and cheer. But one should still see the threat to checks and balances in the constitution for what it is: an executive power project.
Perhaps more worrying is the prospect of rescinding the Human Rights Act and withdrawing from the European Convention on Human Rights, which, created in 1950, was in fact largely authored by a Conservative Party Lawyer and Politician, Sir David Maxwell-Fyfe. Quite why it should be so repellant to his Conservative Party successors is not immediately obvious, unless as David Allen Green has suggested, it is that all power should be in the hands of the executive.
An article in ‘Unherd’ by John Gray, seems, on the other hand, to be completely fine with Johnson proroguing Parliament on specious terms and lying about it to all and sundry. He is much more worried about “Judicial over-reach” and thinks it scandalous that the courts should have overturned a decision to build Heathrow’s third runway. Quite how, though, he thinks contradictory legislation should be resolved, other than by the judiciary, he doesn’t say. He is just clear that ‘democratic’ control trumps the judiciary.
Given the fascistic tendencies of the current ‘democratic’ government this is frightening stuff and I have sought a degree of solace in a paper by Professor Mark Elliott, Professor of Public Law at Cambridge University. He is not clear-cut in his conclusions but there is definitely some hope for judicial discretion under Common Law, and he quotes a paper written by Lord Woolf, who was both Master of the Rolls and Lord Chief Justice, in the Journal of Public Law in 1995. He argued that both Parliament and the Courts “derive [their] authority from the rule of law” and cannot act “in a manner which involves its repudiation…. There are even limits on the supremacy of Parliament which it is the courts’ inalienable responsibility to identify and uphold.”
Let us hope the Supreme Court are reading this as well….
Perhaps even more hopeful might be the fact that Johnson seems determined to hold on to and maintain responsibility for, Scotland. In doing so, as the Judicial system is separate from England’s, Johnson has scant ability to tamper with the Scottish legal organisation and structure, so would be unable, it seems to me, to prevent judicial reviews being brought under Scottish law.
That would be a delicious irony when it was in Scotland that the prorogation of Parliament case was first heard!