93: What’s in store for the constitution in 2022?
Buried in the Conservative Party’s 2019 general election manifesto was an ambiguously-worded statement with potentially far-reaching consequences: ‘After Brexit we need to look at the broader aspects of our constitution’.
Following two years of pandemic gridlock, several significant and controversial Bills are now nearing enactment. Could 2022 finally be the year the government gets the reforms it wants over the line?
Here are five areas of constitutional interest to look out for this year in politics, parliament, and the courts.
1. A rougher ride for public law claimants
Two pieces of legislation would, if passed, make life significantly more difficult for claimants seeking to challenge the actions of government and public bodies.
The Judicial Review and Courts Bill aims to restrict the remedies available to successful claimants. As covered in detail by Partner Matthew Smith, clause 2 of the Bill would create a presumption in favour of suspended or prospective quashing orders, unless there is a ‘good reason’ for a court not to do so. It is hard not to see this provision disincentivising claimants from bringing even strong cases. Why go through the hassle, expense and risks of litigation when you might get nothing from it, even if you can satisfy a Court that the government has acted unlawfully?
Second, proposed reforms to the Human Rights Act – long a target of Conservative justice ministers – are once again taking shape. Among the government’s plans this time around is an additional permission stage for claimants alleging a breach of their human rights. Designed to preclude ‘frivolous or spurious cases’, it would stop claims from making it to court altogether, unless the litigant can show that they have suffered ‘a significant disadvantage’.
2. Ongoing restraint from the Supreme Court – and the government’s response
The elephant in the room behind the government’s judicial review reforms is the string of high-profile defeats it has suffered in recent years, culminating with the Supreme Court ruling in 2019 that the Prime Minister’s prorogation of Parliament was unlawful.
Perhaps with half an eye on the political grandstanding that followed that case, the Supreme Court handed down several decisions in 2021 that were at pains to emphasise the importance of deference to the executive, including three high-profile human rights cases: Begum, SC and CB, and Elan-Cane. In the latter, Lord Reed’s unanimous judgment included a lengthy discussion of the Strasbourg ‘margin of appreciation’ doctrine, in which he warned courts against finding too readily that rights have been breached in areas where the margin has already been held to apply.
Will the Supreme Court continue its deferential streak in 2022, and will that tendency persuade the government to temper some its more radical constitutional proposals? One decision to watch for an early clue over the coming weeks is the pending judgment in Secretary of State v SC (Jamaica), which was heard in October and concerns human rights arguments against the automatic deportation of a foreign criminal.
3. Politicians vs the courts
The fault line between politics and the judiciary that cracked with the Daily Mail’s notorious 2016 ‘Enemies of the People’ headline has not smoothed over. On the contrary, two recent developments suggest it may be growing wider.
First, just before Christmas, the High Court of Northern Ireland handed down judgment in an extraordinary case concerning the refusal of the First Minister, Sir Jeffrey Donaldson, to comply with his obligations under the Northern Ireland Act 1998. In protest against the Northern Ireland Protocol, Sir Jeffrey has for several months refused to attend the North-South Ministerial Council. Though this course of action was held to be unlawful by the High Court in a first decision in October 2021, Sir Jeffrey continued to withhold his attendance. The court’s second consideration of the matter in December was excoriating, describing the First Minister’s conduct as ‘profoundly concerning and depressing’. With Sir Jeffrey’s boycott still not out, a precedent for ignoring judicial decisions in the name of political action could have been set.
Second, it was reported recently that the Westminster government intends to give Ministers the power to overturn court decisions with which it disagrees. Will the government see this through, notwithstanding its implications for legal certainty and the separation of powers?
4. Clashes with international obligations
Home Secretary Priti Patel’s flagship immigration legislation – the Nationality and Borders Bill – is nearing the end of its progress through the Houses of Parliament. One of its most controversial elements is the distinction it draws between ‘Group 1’ and ‘Group 2’ refugees. Only the former – those who arrive in the UK via an official route directly from the country they are fleeing – will be eligible for asylum.
This drives a coach and horses through the 1951 Refugee Convention to which the UK was an original party. Whilst domestic legislation unquestionably trumps unincorporated treaties as a matter of constitutional law, it remains to be seen how this proposed legislation will affect Britain’s standing in the international community, as well as its ability to contribute to global solutions to refugee crises around the world.
5. Some citizens becoming less equal than others
A constitution’s central purpose is to regulate the relationship between a state and its citizens. A second contentious aspect of the Nationality and Borders Bill is clause 9, which threatens to fracture that relationship by removing the requirement on the Home Secretary to give prior notice when depriving individuals of their citizenship.
Citizenship deprivation is already a highly controversial issue, not least since it can effectively only be used against those with lineal roots in another country. This amendment would remove a further constitutional protection by depriving individuals of the right to know that such a decision is imminent, eroding the ability to make effective representations against it. With the Bill currently in its final stages in the House of Lords, it could become law in a matter of weeks.