How will the government “update” its relationship with the courts? 

The Conservative manifesto promised to “update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government”. 

We have heard such pledges before and they have come to little. However, given that this formed part of a thin manifesto with few concrete policy proposals, the fact that the party included it suggests that the prime minister might actually intend to follow through.  

We know very little about the substance of this “update”. The government may not know much either, but it has said it is going to set up a commission within a year to make proposals. So what are the possible avenues for reform? 

Any reforms to judicial review must come from a sound evidence base—not a knee-jerk desire for revenge   

It is no secret that Boris Johnson was frustrated by the decision of the Supreme Court to overturn his five-week prorogation of parliament. He told the House of Commons that the court was “wrong to pronounce on a political question at a time of great national controversy”. 

The fact that the government lost in court is, however, not a good reason to go on the attack. In a society governed by the rule of law, the government does not always get its way. That is not because the courts have a political axe to grind: they do not, and cannot, overturn a government decision merely because they think it is wrong. 

But when the executive acts outside its powers, or makes decisions through an unfair procedure (like a biased one), or acts so unreasonably that no reasonable person could possibly have acted the same way, then the courts step in to uphold the rights of the citizen. That protects everyone against abuses of power, and ultimately safeguards the sovereignty of parliament by ensuring that the executive can do what parliament or the royal prerogative authorises, but no more.  

If the government has genuine concerns that the courts are applying those tests in a way that hinders effective government, it will need to provide a much more robust evidence base.  

As Dominic Cummings, the prime minister’s chief of staff, observed in 2015, “attempts to curtail the scope of judicial review could lead to a mega clash between Parliament and the courts”. This would not achieve the manifesto’s objective: to “restore trust in our institutions and in how our democracy operates”.  

The government may use procedural changes to deter people from bringing judicial review claims 

The coalition government made some changes to the procedure for judicial review, citing concerns that judicial review was being “abused, to act as a brake on growth”. 

That government used secondary legislation to compress the time limits for these cases, to impose some new court fees, and to make it harder to revive a claim that a judge has said is weak. It then passed primary legislation to make it harder to challenge the government’s conduct in cases where the outcome for the claimant would not have been “substantially different” had that conduct not occurred. The legislation also increased the risk that third parties who “intervene” in court cases, like charities and non-governmental organisations, might have to pay the legal fees of other parties to the case. 

The government may try to make further changes to the procedure for judicial review, for instance by legislating to compel those who challenge the government in court to pay legal costs more often.  

Ministers may also reheat an idea mooted by Chris Grayling in an early consultation, and try to narrow the range of people who can bring judicial review cases (who has “standing”). Limiting the ability to bring cases to those with a direct interest in the matter at hand would, in most cases, exclude charities or non-governmental organisations. 

Any reforms along these lines would have serious implications for the rule of law and access to justice. If a claimant with a strong case were deterred from bringing it due to the costs risks, or deprived of the opportunity by rules on standing, then that would mean the government could carry on breaking the law with impunity. Such reforms would be likely to face the same stiff opposition as Chris Grayling’s reform package.  

Changing the substantive law of judicial review would be complex and time-consuming 

It is possible that, rather than looking at the procedure for judicial review, the government could try to change the substantive law of judicial review: the grounds on which a decision of a public body may be overturned in court. 

However, the substantive law is currently common law, not statute, meaning that it has been developed by the courts over centuries in thousands of individual cases.  

Though Parliament could change that body of common law using legislation, this would be a vastly more complex, novel, time-consuming and constitutionally hazardous project than changing procedural rules.  

Promises of human rights reform are ambiguous – but any changes will have implications for devolution and Brexit 

If the government wants to update the UK’s human rights framework, it has one big choice to make at the outset: does it want the UK to remain a member of the Council of Europe and so a signatory to the European Convention on Human Rights? 

If so, then the UK remains bound to give effect to those rights and remains bound by the judgments of the European Court of Human Rights in Strasbourg. Reforms could change only how those rights are given effect. Michael Gove, when he was justice secretary, suggested that reforms might limit the application of human rights obligations to troops operating abroad, and make it easier for UK courts to depart form the decisions of the Strasbourg court. 

If the government wanted instead to leave the Convention, then it would need to build a human rights framework from scratch. 

Either course of action would have knock-on effects on other areas of policy. Boris Johnson’s government agreed with the EU, in the “political declaration”, that the future UK-EU relationship “should be underpinned by long-standing commitments to the fundamental rights of individuals, including continued adherence and giving effect to the ECHR”. It will be more difficult to agree on security cooperation if this is called into question. 

The Human Rights Act 1998 is also incorporated into the devolution settlements by the legislation which set those settlements up. Under the Sewel convention, any amendment to the Human Rights Act would therefore require the consent of the devolved institutions. They are unlikely to give it.  

All governments get frustrated with the courts, because all governments sometimes lose in court. But that frustration is not itself a sound basis for reform, because governments sometimes should lose. The question this administration now needs to answer is: if frustration about losing is not the reason, what is?