Since the Supreme Court was established in 2009, there have been a number of significant examples of judicial review that have taken place. As the UK’s final court of appeal for both civil and criminal cases, the Supreme Court is the final judicial adjudicator on key legal and constitutional issues bought before it. Cases come to the Supreme Court after they have previously been handled by the lower courts:
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Recall refers to the power to remove (recall) an elected politician from office. Recall is an example of direct democracy and theoretically gives voters significant control over their representatives. In Britain, the Recall of MPs Act (2015) gave voters some power to recall MPs in certain circumstances.
Continue readingWhen the Fixed-Term Parliaments Act was passed in 2011 it was sold as a significant constitutional reform that would modernise the UK constitution and give more democratic legitimacy to the House of Commons. Prior to this, the calling of General Elections was governed by both statute and convention:
Septennial Act 1716 – This Act mandated that a General Election had to be called at least every seven years. In 1911, the Parliament Act reduced the maximum length of each Parliament to five years.
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Britain is a parliamentary democracy. This means that the executive branch is formed from the legislature. In addition, the executive branch must, through the mechanism of confidence motions, be able to show that it has the confidence of the legislative branch. In Britain, there are two chambers which make the up the legislative branch – the Commons and the Lords.
Britain is also a representative democracy. The legitimacy of the government is derived from the fact that that it holds the confidence of the House of Commons. However, by extension, this also means that it has the confidence of the electorate. This is why under the Fixed-Term Parliament Act (2011) if a government cannot keep the confidence of the House of Commons, a new General Election must be called.
Arguably, however, the legitimacy of government is weakened when members of the House of Lords are appointed to positions in government and particularly to those senior positions within the Cabinet.
Firstly, one constitutional concern is that members of the House of Lords are not directly accountable to the electorate. Peers hold their position virtue of appointment and, until recently, held that position until they died. Historically, this has led to the continuance of members in the House of Lords with questionable credentials. These include Lord Archer who in 2001 was sentenced to four years imprisonment for perjury and perverting the course of justice after being found guilty of lying in a libel trial in 1987. Jeffrey Archer, however, remains a member of the House of Lords.
Recent legislative changes have altered this slightly. The House of Lords Reform Act (2014) allowed members of the House of Lords to resign. In addition, the House of Lords (Expulsion and Suspension) Act in 2015 allowed for the House to expel or suspend members (but not retrospectively). As of February 2021, 130 peers have resigned or retired from the chamber and it seems to have been a popular option with members.
Secondly, Members of the House of Lords are arguably not able to be effectively scrutinized. Importantly, despite mechanisms of scrutiny being similar as in the Commons (question time, committees and written questions), members of the Lords cannot be directly scrutinised by elected members (apart from in rare Joint Committees).
These issues have led to the development of certain conventions regarding the House of Lords. Firstly, no Prime Minister has governed from the House of Lords since Lord Salisbury in 1902. The only minor exception to this was Alec Douglas-Home who became Prime Minister whilst a member of the House of Lords. When he became Prime Minister in 1963, he was a member of the House of Lords. However, on becoming PM he renounced the title and won a by-election to a safe seat in November 1963 (incidentally, also the only time a sitting PM has ever been involved in a by-election). Secondly, it has also become a convention that holders of the Great Offices of State (Prime Minister, Foreign Secretary, Home Secretary and Chancellor of the Exchequer) do not sit in the House of Lords. The last holder of a Great Office to hold it from the House of Lords was Lord Carrington in 1982.
However, this does not mean that Cabinet Members, sometimes significant Cabinet members (or Cabinet attendees), come from the House of Lords. The first ministries of the following governments had the following Ministers from the House of Lords:
John Major 1990
Cabinet Members: Lord Mackay (Lord Chancellor) and Lord Wadington (Leader of the House of Lords).
Tony Blair 1997
Cabinet Members: Lord Irvine (Lord Chancellor) and Lord Richard (Leader of the House of Lords).
Also attending Cabinet: Lord Williams (Attorney-General).
Gordon Brown (2007)
Cabinet Members: Baroness Ashton (Leader of the House of Lords).
Also attending Cabinet: Lord Grocott (Government Chief Whip in the Lords), Baroness Scotland (Attorney-General) and Lord Malloch-Brown (Minister for the United Nations).
David Cameron (2010)
Cabinet Members: Lord Stratchlyde (Leader of the House of Lords) and Baroness Warsi (Minister without Portolio).
Theresa May (2016)
Cabinet Members: Baroness Evans (Leader of the House of Lords).
Boris Johnson (2019)
Cabinet Members: Baroness Evans (Leader of the House of Lords) and Baroness Morgan (Secretary of State for Digital, Media and Sport).
Also attending Cabinet: Lord Goldsmith (Minister for Environment, Food and Rural Affairs).
(Note, the office of Lord Chancellor had to be held from the House of Lords and until the Constitutional Reform Act (2005) was very significant. Following this, the Justice Secretary took the majority of political roles, and the Lord Chancellor became a more symbolic position).
As the above shows, the numbers of Cabinet Members of the Lords is generally low and most have been members that have to come from the Lords because of the nature of the role (Lord Chancellor, Lords Leader and Lords Speaker).
However, recent events have put this issue into sharp focus. In July 2016 the government of Theresa May established the Department for Exiting the European Union to oversee Britain’s departure from the EU. This was be led by a Secretary of State (informally called the ‘Brexit Secretary’) who became a Cabinet Member. However, on 31st January 2020, the department and office was a abolished (this was meant as a clear political sign that Britain had left the European Union).
However, the transition period and the ongoing trade negotiations make it very clear that, whilst Britain has left the European Union, creating its ongoing relationship with the EU is still very much a work in progress. With this in mind, Boris Johnson recently appointed Lord Frost (Britain’s Chief Brexit Negotiator) to the Cabinet. Frost will replace Michael Gove as the leading Cabinet authority on Brexit.
As such, he is undoubtedly the most prominent Peer to sit in the Cabinet since Lord Mandelson became Secretary of State for Business in Gordon Brown’s 2008 reshuffle. Despite Frost’s undoubted experience, there are fears that such an important role should not be held by someone who cannot be directly scrutinised by elected representatives. Labour’s Emily Thornberry said:
” [he is] someone who has never been elected by anyone in this country, and won’t be accountable in the House of Commons to any of us who have”
However, conversely, Frost was Britain’s Chief Brexit Negotiator before his appointment to the Cabinet. It is arguable that his appointment to the Lords at least provides some scrutiny, if not the direct scrutiny from the House of Commons that would be ideal.
Perhaps more worryingly for the government, Frost’s appointment has not been an isolated example. Boris Johnson has appointed a number of members of the House of Lords to lead significant government departments. Controversially, he appointed Baroness Morgan to be Secretary of State for Digital, Media and Sport. This was controversial because she had chosen to stand down as an MP, but was kept in post irregardless. In addition, he was criticised for the amount of power granted to unelected SPADs like Dominc Cummings.
In the UK, as opposed to the US for example, the appointment of Cabinet Members is entirely down to the Prime Minister’s Royal Prerogative powers. Parliament is not to asked to ratify a Cabinet appointment and nor can it stop one being taken up. It is arguably a worrying trend that the last few years have seen a growth in senior Cabinet members coming from the House of Lords.
However, importantly, these members are scrutinised in their government roles. They face Question Time from other Lords, they face written questions and appear in front of Select Committees. In fact, in many ways, scrutiny might even be better in the Lords! For example, currently in the House of Lords there are 8 current ex-EU commissioners in the House of Lords. In addition, there are 4 ex Foreign Secretaries in the Lords. In addition, the House of Lords has a permanent European Union Committee with four sub-committees. Frost may feel he is under too much scrutiny in the Lords! Yet, Frost will not face questioning from from elected MPs and fundamentally this might be seen to undermine democratic legitimacy.
Interestingly, in 2009 the Business and Enterprise Committee suggested that the easiest way to fix this would be to allow Lords to appear from the Despatch Box in the House of Commons. This was discussed by the then Speaker Jon Bercow, but nothing more came of the suggestion – again a seeming parliamentary example of tradition overruling good governance.
The COVID-19 pandemic mandated a huge increase in government awarded contracts – ranging from the testing systems, to vaccines and to PPE. A High Court Judgement this week has found that the government acted unlawfully in awarding some these contracts and it is an excellent and up to date example of Judicial Review.
Since the start of the pandemic, there have been concerns that contracts relating to COVID-19 have been awarded not because the tender offered a superior service, but because of pre-existing relationships between those applying for the contract and government ministers.
The particular case in question was bought by the Good Law Project (a promotional pressure group) and the issue involved contracts awarded by Matt Hancock’s Department of Health and Social Care (DHSC). The Good Law Project is a non-profit group whose website states that its purpose is as follows:
Our mission is to achieve change through the law.
We defend, define and change the law to uphold democracy, protect the environment and ensure no one is left behind.
The basis of the legal challenge was that research had shown that the DHSC has spent £15 billion on PPE contracts but that only £2.6 Billion of that spending had been published. However, government regulations specifically state that any spending of more than £10,000 has to be published within 30 days of the contact being awarded.
The Good Law Project noted three examples whereby the government had fallen foul of its own regulations to publish the contracts:
In addition, the Good Law Project found that the average publication time for all contracts within the DHSC was 47 days, meaning that missing the regulatory requirements was commonplace.
The decision by the judge was clear and highly critical of the government. Justice Chamberlain said:
” The secretary of state spent vast quantities of public money on pandemic related procurements during 2020. The public were entitled to see who this money was going to, what it was being spent on, and how the relevant contracts were awarded”
He also criticised the government for trying to defend the claim (which had it had done so weakly) saying that this had cost the government £207,000 of taxpayers money. He said they should have accepted wrong doing earlier and avoided the necessity of a court hearing.
This legal judgement is damaging to the government. However, it also has a damaging political impact, with the a sense that ‘cronyism’ is at play and contracts are being awarded for the wrong reasons. Beyond these cases, there have been other cases that appear worrisome. An investigation by the New York Times in December 2020 found that:
This is a worrying trend, particularly in light of previous Brexit related mispending. For example, when Chris Grayling awarded a ferry contract worth £13.8 million to a company that owned no ships!
Another important point to note is that this Judicial Review took place in the High Court. In fact, this is where most judicial review takes place. The Supreme Court is the final court of appeal. Therefore, clear cut cases like this (the government will not appeal) will be decided without making it to the Supreme Court. When considering Judicial Review, the High Court and Court of Appeal are just as important as the Supreme Court.
Politics Teaching 