“I believe it’s incumbent upon me to ensure that the rule of law itself cannot be misused to, in effect, weaponise the courts against governmental conclusion,” he said.
He characterised the UK administration’s schedule as among restoring the version of the political constitution which has been the orthodoxy for much of the previous century.
Having become invested with an increasing number of meaning as time passes, the rule of law, he said, was”the victim of conceptual creep”, leaving it open to being hijacked by”politically motivated pursuits”.
The rule of law is not a legal idea, but one of political morality, ” he added. Nevertheless, it is a political rule”that is over and must always be above party politics — a dedication to the principle of law is something that we all share”.
Mr Buckland explained:”That makes it an extremely strong idea and a failure to abide by it gives rise to criticisms that aren’t grounded in mere party politics.”
He suggested the concept has been abused for political ends; that”both the left and the right have tried to read controversial political worth into it”.
The Lord Chancellor clarified:”This type of argument implies that the party-political perspective of a single group are incompatible with the basic principles of their legal system, consequently characterising them as illegitimate without the need to interact with them on their values”
He added:”Now, doesn’t this amount to moving the goalposts such that, no matter the will of the people and no matter the will of Parliament, a political effect that is deemed undesirable by one side or the other could be deemed illegitimate from the title of the rule of law, no matter how loosely connected to that notion it really is?”
In the context of judicial decision-making, he suggested some judges reluctantly turn into meta-rules, saying that if the courts read too much into the rule of law they could defy the will of Parliament.
Citing the cases of Privacy International and Evans, he said:”In both instances… nearly to [required] the clearest words (that weren’t present) to give the effect intended by the authorities. By contrast, the minority applied a more natural interpretation to these provisions.”
He added:”However, these instances were not instances of everyone agreeing to the applicable idea, realising that its application was borderline, and then coming out on different sides of the line. Rather there was a considerable disagreement about exactly what the applicable principles were. That disagreement was jaded by the use of the expression’rule of law’.”
He went on to say:”I wish to restore what was at one time that the very traditional thinking that Parliament makes laws that give power to the executive and are checked by the judiciary.”
He concluded:”My aim is quite simple: to protect the courts from the disappointing state of affairs and to keep them from being dragged into politics by a different name.”
Speaking to Scottish Legal News, former Supreme Court justice Lord Sumption, that had been in the minority at Privacy International, welcomed the speech and said the term”rule of law” is too often utilized to exclude the possibility of any political answer to some problem.
He said:”The rule of law implies: 1) that the government has no power to coerce us with no specific statutory authority, 2) which people must have the minimum of legal rights required to safeguard them against arbitrary violence and also to prevent civil society descending into the rule of the strongest, and 3) that there has to be access to separate courts to apply these two principles.
“The term is too often deployed to suggest that there has to be a legal and judicial (instead of some political) response to each issue in public affairs.
“This error is at the heart of the issue. The corollary of point ) is that the courts must apply the law, and not what they fancy the law may be in an ideal world. In other words, it binds judges in addition to politicians.
“Decisions which evade parliamentary laws are a significant attack on the principle of law by the very men and women who should be upholding it. I made this point in my dissenting judgment in Privacy International.”
He also explained Mr Buckland’s speech, in which he said a legislative solution, was the”first comprehensive account from a government minister about what their rather loose manifesto commitment to block the courts engaging in’politics by other means’ could actually entail”.
He pointed out that distinct cases have involved competitions between various branches of this country:”It is essential to distinguish between cases like both Gina Miller decisions, which in reality sought to shield Parliament out of being sidelined by the government, and instances like Evans and Privacy International, which involved an attempt by the courts to evade the plain meaning of parliamentary legislation since they did not like it.”
“Buckland’s address marks an important change towards the genuine constitutional issue, which is about decisions where the courts enforce what are essentially policies of their own about the coverage of Parliament,” he explained.
The former judge stated it was reassuring that Mr Buckland had recognized that the north star of judicial review is to measure decisions contrary to the policy of Parliament.
“Buckland overtly declares that the appropriate function of judicial review is to maintain the centrality of parliamentary policy in our constitution. He is completely correct about that. It’s reassuring to locate a government minister finally identifying the actual issue instead of just reiterating old resentments borne of those irrelevant disputes within Brexit before December 2019.”
He was sceptical, however, that legislation could take care of the problem.
“What is missing from the address is some idea of how to manage the issue. He states that legislation will be introduced. But what will laws do? There is no legal rule whose alteration would take care of the issue.”
He said it was rather a matter of”judicial instincts and approaches” and these are”difficult matters to legislate for”.
He added:”We will have to wait and see what they intend to do about that.”
