IN a civilized democracy the rule of "rule of law" refers to people obeying laws so that society can function properly. There is however one caveat: the rules also apply to government to ensure they do not abuse their power.
Recent times have shown judicial reviews to be an effective tool in bringing to heel a "rogue government and departments", public authorities, councils, police forces or health authorities.
Judges in such cases can neither be classed as "bleeding heart liberals" or as "enemies of the people", acting independent of the executive. It is rare for judicial reviews to make it to court and when they do so it is because the case has merit.
Over the course of the pandemic, health workers were able to use a judicial review to force the government’s hand on the failure to provide them with personal protective equipment (PPE).
Mothers of soldiers killed in war have challenged the Ministry of Defence over the failure to provide equipment that would have saved their lives.
Judicial review was used to stop the Government acting illegally as it tried to shut down Parliament for some three weeks as the Brexit withdrawal deadline drew nearer to stop it being scrutinised.
Of course, for Boris Johnson and Priti Patel it’s us activist lawyers who get the blame for judicial reviews - the irony being if the Government hadn’t broken the law they wouldn’t find themselves in court.
So now they want the powers to strike out findings from judicial reviews with which the Government does not agree. The irony is not lost, after all we were told we left Europe to protect the independence of our courts and that Parliament was sovereign.
The myth perpetuated by the Tories is that judges can quash laws passed by Parliament. That simply is not true as Parliament remains sovereign. Judges can however rule that laws passed may be incompatible with our human rights, which puts the onus on Parliament to then do something about it.
Meanwhile the Human Rights Act is waved about as though it is a license for killers and rapists to walk our streets, but it was the judicial review of the case described as the "Black Cab Rapist" that saw a man -imprisoned for assaulting 12 women in his cab and suspected of attacking 100 others - have his release quashed after two women who had survived his attacks took the parole board to judicial review. The court sent the case back only for him to be refused.
Johnson is not happy with anyone holding his government to account - especially not after humiliation at the hands of the Supreme Court, so he now seeks revenge on a centuries old principle that no one, not even the Government, is above the law.
But the present bill is all part of a series of measures that places his government beyond any concept of accountability, with the abolition of the Human Rights Act, criminalizing of peaceful protestors and state sanctioned murder of desperate asylum seekers.
For those believing that Scotland is safe with its own legal system, I would argue the passage of this law would leave our courts unable to act as they did previously over Brexit and at the mercy of a corrupt Westminster, designating that certain powers it gives itself can never be challenged.
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