The antagonism between the recent successive Conservative governments and the judiciary is a tale as old as time, from issues of Brexit to immigration and matters of citizenship. Framing the courts as ‘enemies of the people’ – a now-notorious Daily Mail headline, published on the 4th of November 2016 – catalysed a ‘war on judges’ with distinctly populist undertones.

Clashes have been common over the past few years; the Court of Appeal locked horns with the Home Office on deportation in February 2020 and the Miller and Cherry cases transposed the word ‘prorogation’ from the esoteric domain of public lawyers to dinner table conversation across the country. Such tension has recently culminated in a proposed ‘Interpretation Bill’ and, understandably, there is a distinct polarity in the commentary surrounding it. The Spectator, for example, praises the concept of ‘an omnibus bill tackling multiple cases at once’ while The Times frames the bill as a sinister means of ‘[striking] out findings from judicial reviews with which the government does not agree’. Purportedly, one senior QC stated that Boris Johnson was secretly seeking ‘a more compliant judiciary’, a concept not easily reconciled with the concepts of checks and balances, separation of powers, or transparency.

The truth of the matter is no one, not even the Prime Minister, knows what to anticipate with the Interpretation Bill, merely that it is to correct where the Judicial Review and Courts Bill apparently did not go far enough. For the next few weeks, as the news focuses on booster vaccine roll-out and the more flagrant reworking of the Human Rights Act, the Interpretation Bill exists in a state of flux, a Lovecraftian horror hovering ominously over the legal profession. It remains to be seen whether it will emerge from the mists as an amorphous, unworkable entity with no bite or the worst-case despotic curtailing of ministerial accountability.

The current cabinet's detailed history of an anti-judiciary flavour is giving us a taste of what to expect. The problem the government has with judicial review is that it works – in its paper, ‘Judicial review and policy making’, the Institute for Government’s findings are that ‘a small number of high-profile cases, or the threat of them, can generate anxiety in some departments’ and that ‘even the threat of legal action means that legal risk needs to be considered at every stage of the process’. If the Interpretation Bill is a Get Out of Court Free card, ministries will face much less internal scrutiny to ensure decisions reach an appropriate standard.

A dedicated block of time in the parliamentary calendar for mitigating the judgements the government – rather than Parliament, ultimately - does not like as opposed to legislating creatively and constructively appears to be a more fundamental reframing of Parliament and its purpose than meets the eye. But as with all innovations in public law, we know our eyes are not to be trusted with the Interpretation Bill.

by Dite Bagdonaite

"Understanding" the Interpretation Bill