Ministers’ attacks on judges threaten UK democracy, warns new report
Government attacks risk giving the impression that the courts are being pressured to rule in Boris Johnson's favour
Boris Johnson’s government has come under fire for its repeated and unwarranted attacks on judges, which could be undermining judicial independence and threatening UK democracy.
A new report by a cross-party group of MPs accuses ministers of acting in a “constitutionally unhelpful and inappropriate” manner, which may have “created the impression that the Supreme Court has been influenced by ministerial pressure”.
These damning conclusions were reached following a three-month inquiry by the All-Party Parliamentary Group on Democracy and the Constitution (APPGDC), which heard evidence from a range of witnesses, including former senior government lawyers, and considered hundreds of pages of Supreme Court judgments, academic commentary, and public statements by ministers. The Ministry of Justice failed to respond to an invitation to give evidence on behalf of the government.
The inquiry also reviewed all of the Supreme Court’s public law decisions since 2020, finding that “the high number of instances in which the Supreme Court has reversed its previous position on the law, so as to adopt an approach that is more favourable to the executive, is notable”.
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I served as counsel to the inquiry. I am writing this article, with the permission of the APPGDC’s chair (Labour MP Geraint Davies), to aid public understanding of some of the report’s conclusions.
What have ministers said?
The report charts a history of government attacks on judges going back to the early 2000s, which have increased in frequency and intensity since the infamous Daily Mail ‘Enemies of the People’ headline in 2016.
Ministers and the press have repeatedly attacked people who take the government to court and judges who rule in their favour. In 2020, an immigration law firm suffered a right-wing terrorist attack linked to home secretary Priti Patel’s criticism of “do-gooder… lefty lawyers”. Weeks later, an ally of Suella Braverman, the attorney general, told newspapers that, if judges ruled against her, they were “wet liberals” and “soft on criminals”.
The report found most government attacks on judges are unwarranted and/or misleading. It quotes, for example, Tory MP Geoffrey Cox QC’s claim (while he was attorney general) that the Supreme Court had “invented” new law when it ruled against Johnson’s prorogation of Parliament in 2019, intended to prevent MPs from scrutinising Brexit negotiations. Cox’s claim could not have been further from the truth – the court relied on precedent going back to 1611.
Since Johnson came to power in 2019, ministers and the press have made veiled (and not so veiled) threats towards judges. The prime minister threatened “consequences” after the Supreme Court forced him to re-open Parliament. The Sun later promised that “no Supreme Court judge is safe in their bed”. Government sources quoted Dominic Cummings (then Johnson’s senior advisor) saying he “wants to get the judges sorted”. In one instance, Priti Patel “actively and directly attempted to influence judicial decision-making” by writing to the President of the Immigration Tribunal to demand an explanation for several decisions that went against the government.
The impacts are worrying. Some 94% of judges are concerned about the government’s attitude towards the judiciary, Cheryl Thomas QC, the lead investigator for the UK Judicial Attitudes Survey, told the APPGDC.
Why are these findings worrying?
Ministers have a legal duty to “uphold the independence of the judiciary”. There is also a constitutional convention by which MPs will “show due inhibition” when commenting on judicial decisions – meaning ministers should not criticise the judiciary outside Parliament.
While the APPGDC rightly stresses that it makes no criticism of judges, it warns the government’s actions risk giving the impression that the courts are ruling in its favour out of fear of the consequences if they do not. The report noted recent statements by Braverman and the former lord chancellor, Robert Buckland, “which seem to indicate that the executive itself believes the post-2020 [Supreme] court has changed its approach as a result of criticism received from ministers”.
The report’s findings on the Supreme Court changing its positions to adopt stances closer to those of the government, concur with separate research undertaken by Lewis Graham at the University of Cambridge (which was published too late to be included by the APPGDC).
The courts allow citizens to hold our government accountable when it treats us unlawfully
Graham’s research highlights that, since 2020, the Supreme Court has upheld just 28% of human rights claims against the government (compared with an average of 41% from 2010-19). While the court ruled in favour of public authorities in around 51% of cases in 2020 (roughly in line with the 2010-19 average of 56%), it ruled in favour of central government 86% of the time in 2021.
An independent judiciary is a concern for every single citizen because it is essential for a functioning democracy. The courts make sure the executive obeys the law set down by the democratically elected Parliament. They allow citizens to hold our government accountable when it treats us unlawfully.
If citizens believe judges are making decisions based on fear of the political consequences, rather than on the law, they will lose confidence in our justice system. As a result, government becomes less accountable, Parliament less authoritative, and the UK less democratic.
This means it is vital that the APPGDC’s recommendations are followed. The group proposes a new statutory code of conduct, outlining how ministers should behave towards the judiciary, which will make clear the legal and constitutional duties of ministers – and allow the public and Parliament to hold them accountable when they fall short.
The APPGDC also recommends that securing the independence of the judiciary be the primary focus of the government’s rumoured forthcoming review of the Supreme Court. For politicians who value democracy, and citizens who value their rights, these reforms could not be more urgent.
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