Scotland’s justice system remains devolved and, as such, the powers to amend the judicial review process are, thankfully, protected. The UK Justice Secretary’s predecessor recognised that separate nature in March when he told the House:
“In respecting separate jurisdictions, as I always do, these proposals relate to England and Wales matters and have been carefully delineated in that way.”—[Official Report, 18 March 2021; Vol. 691, c. 510.]
The Minister must give similar guarantees that, if the Bill becomes law, the Government will not look to expand its scope to impact on Scotland’s independent, unique and distinct legal system. He must also acknowledge that he should not have the authority to attempt unilaterally to unpick such a fundamental part of the UK constitution. The Scottish judicial review process has evolved over many years and the result is a proper system of checks and balances that does not need interference from Westminster.
That separate and valued legal system means that most of the Bill will not impact on my constituents or on Scotland, but parts of it will, and that does not
detract from my concern about the way in which the Government are operating towards the judiciary in England and Wales. It appears to me that the Bill is part of a broader drive to increase the power of the Executive, to limit oversight, and to reduce the ability to seek judicial remedy in the courts and to hold this Government and Governments after them to account.
I say a broader drive, because the Bill is moving through this place at the same time as the Nationality and Borders Bill, the Elections Bill, the review of the Human Rights Act and the Police, Crime, Sentencing and Courts Bill.
Each taken on their own merit should be cause for concern, but as a package they leave little doubt that the Government’s strategy is to roll back the rights of vulnerable groups, while simultaneously removing the checks and balances on the Government’s Executive power.
The Prime Minister’s decision to prorogue Parliament in 2019 was the first step on the road to an increasingly authoritarian style of government. Since the two high-profile defeats on article 50 and prorogation, and several High Court rulings on immigration and employment tribunal fees, the Government have been vocal in their criticism of the justice system. The Home Secretary herself referred to “lefty lawyers” and “do gooders” looking to hamstring the legal system. In reality, the Bill is a crackdown by the Government, who are unable to move past the frustration of high-profile defeats in the Supreme Court. Rather than asserting their Executive authority and removing checks and balances, the Government should be listening to calls from senior legal experts across these islands and their own review.
Lord Faulks, a former Conservative Justice Minister, wrote that Ministers should “think long and hard” before seeking to curtail the powers to the judiciary. He added: “Our view is that the government and Parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action. Politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers.”
With that in mind, I urge Members to vote against the Bill and maintain the vital checks and balances in this crucial area of law.
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