Judicial review reviewed

Yesterday a regular commenter on my YouTube channel pointed out that the government had agreed to abide by the ECHR and the Human Rights Act as part of the Brexit deal. This is true but, as a 5 minute google search showed, not without its caveats. Hardly surprising given the frequency with which this government of chancers breaks its international agreements. This country is already in breach, generally as a result of government policy of nearly every one of the 14 convention rights and there are plans to renege upon even more as I speak.

This morning’s article from the BBC news website, underlines the point beautifully…

This is a little nuanced and it will take a bit of explaining but there is a loophole which the government is relying upon to sidestep the convention. The conditions that apply to allow this are…

Article 15 of the European Convention on Human Rights allows countries to derogate (effectively put to one side) other articles of the convention in times of emergency. This was accepted into the UK legal system by the judicial chamber of the House of Lords in 1966. The conditions that allow this are very limited. They are…

  • in time of war or other public emergency threatening the life of the nation;
  • only to the extent strictly required by the exigencies of the situation;
  • any derogations may not be inconsistent with the State’s other obligations underinternational law;

In reforming the Human Rights Act, the British legislation mirroring the ECHR, the government is relying upon article 15 (the right to derogate) to create laws that are incompatible with European human rights. Since the British courts are bound to apply British law all they can do is issue a ‘Declaration of incompatibility’ and give leave to appeal to a higher court. Of course, the only court able to issue a contrary ruling would be the European court in Strasbourg and the route there was long and arduous even before Brexit.

As the BBC article points out…

“The government is pressing ahead with plans to limit how the public can legally challenge official decisions, despite fears it will damage justice.”

This attack on judicial review of government decisions, together with Boris’ enabling act which I described in an earlier video – click the little icon above to watch that one – takes us another step forward in our country’s relentless march toward dictatorship.

To quote again from the BBC article…

Critics call it an attempt to stop scrutiny of bad decisions.

“Judicial review most famously led to the Supreme Court’s judgement that Prime Minister Boris Johnson unlawfully closed down Parliament ahead of Brexit.

Any decision taken by a public body can be challenged in a judicial review before a High Court judge – and the power is used daily to examine whether officials are following the laws set by Parliament governing their work.

Recent examples include a challenge to exam grades being set by algorithms in England – the threat of which contributed to a government U-turn – and the blocking of the release of the so-called “black-cab rapist” John Worboys.”

They’re even providing a way to give wrongdoers a free pass, even when found guilty of existing law, potentially preventing anyone who has been wronged by the government from achieving appropriate legal remedy. This breaches articles 6, 7 and 13 of the ECHR as well as opening the door to breaches of every other part of the Convention in the process.

The result of all this, for the first time in living memory will be a government that is beyond scrutiny, that cannot meaningfully be challenged in court and that has already given itself the power to enact new legislation without reference to parliament or anyone else.

On one occasion they did this at 15 minutes to midnight the day before a new offence came into force, leaving no time for anyone to become familiar with their obligations before committing a brand new crime. This was the law, issued in September 2020, that limited drinkers to groups of 6 but allowed fox-hunters (itself ostensibly illegal in most circumstances) and grouse-shooters to meet in whatever size group they wished. Pub-goers and restaurant patrons faced £100 fines and a criminal record without notice the very next day.

Stephanie Boyce is president of the law society. Her judgement on the new legislation was…

“There is a great deal here that should ring alarm bells for people who come up against the might of the state”

Once again the Johnson regime is dragging our long-standing, traditional and internationally respected democracy over the coals and the outcome will not be pretty.

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