A tale of two countries

There was much of interest for solicitors in the recent Queen’s speech. Top of the list is likely to be the royal commission to review and improve the efficiency and effectiveness of the criminal justice process, which will take place side by side with reforms to sentencing and justice for victims.

But the announcement with the most likely long-term effect for us is the government’s stated intention to set up a Constitution, Democracy and Rights Commission. There was just a bare announcement in the speech itself, and so for the little published detail available we need to look at the Conservative party manifesto, the relevant parts of which state: ‘After Brexit we also need to look at the broader aspects of our constitution: the relationship between the government, parliament and the courts; the functioning of the royal prerogative; the role of the House of Lords; and access to justice for ordinary people… We will 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 will ensure that judicial review is available to protect the rights of individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays. In our first year we will set up a Constitution, Democracy and Rights Commission that will examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates.’

For some, this has set off alarm bells that we will witness an act of revenge against the Supreme Court for the two Gina Miller judgments on the role of parliament. The first in relation to its consent being needed for triggering article 50; the second in relation to prorogation. We may also see a change in the judicial appointment process.

There is considerable Conservative support for the abolition of the Supreme Court, and doubtless for more severe restrictions on the ability of citizens to challenge government decisions in relation to our constitution.

The government has said that it wants to unite the nation after the damaging Leave-Remain tussles of the last three and a half years. It needs to be careful then that a Brexit-inspired reconstruction of our constitution is not seen as a continuation of the Leave-Remain struggle by other means

Of course, much depends on the terms of reference and membership of the new commission, but it is still worth looking at the trend in some European countries to restrict the powers of judges and the courts in relation to government actions. We must hope that this will not be the pattern followed here.

Poland and Hungary are the two examples usually cited. They both remain in the EU and need to apply EU principles which will no longer apply to us.

In Poland, there have been many harmful steps taken to intimidate the judiciary. Maybe the worst, with overtones which echo the hostility of some to the Supreme Court and the courts’ power of judicial review after the Brexit cases, is the step the Polish government took to enable it to discipline judges for the content of their judicial decisions, which would include referrals from the Polish courts to the Court of Justice of the European Union (CJEU). The CJEU has been a powerful weapon in favour of the rule of law in Poland through its rulings against the Polish government on its judicial reforms.

These steps have not united Polish society, but split it. There was a public march recently (pictured) that included foreign judges ‘in a show of solidarity with Polish peers who are protesting a bill that would allow the government to fire judges who issue rulings officials don’t like’.

Our government has said that it wants to unite the nation after the damaging Leave-Remain tussles of the last three and a half years. It needs to be careful, then, that a Brexit-inspired reconstruction of our constitution is not seen as a continuation of the Leave-Remain struggle by other means. If for no other reason, we need to guard against changes which could be used in different circumstances by governments of another political complexion.

I do not believe that our government will go anywhere near the Polish example, since the decisions it has made since the election (on issues unrelated to judges and the courts, like restoring Stormont government, the bailout of Flybe and the response to the Iran crisis) show evidence of ideological moderation.

There are other issues for solicitors ahead. For instance, the government has announced that the Domestic Abuse Bill and the Divorce, Dissolution and Separation Bill, both of which were first introduced under the previous government before falling at the dissolution of parliament, will be reintroduced in the new session.

However, it is the changes to our court system and constitution which are likely to have the most long-term effects, and we should focus on them with all our attention and resources.

Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and do not necessarily reflect the views of the Law Society Council