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'Judicial Review and Courts Bill is next step to restoring sovereign Parliament,' says Spalding-area MP Sir John Hayes

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In his weekly Hayes in the House column, Sir John Hayes discusses the relationship between Parliament and the Courts...

Over the last three weeks in the House of Commons, amongst numerous other matters, I have spent many hours debating the issue of the separation of powers, that is to say, the relationship between Parliament and the Courts.

The Judicial Review and Courts bill, which I have played my part in scrutinising, aims to affirm the right balance between the authority of Parliament and the judiciary.

MP Sir John Hayes (53387402)
MP Sir John Hayes (53387402)

At the core of our constitutional settlement, upon which our laws and freedoms depend, is a concept evolved from the right of kings and set in stone by the Glorious Revolution of 1688 – the
supremacy of Parliament.

The authority of Parliament is fundamentally about giving the elected representatives of the people, Parliamentarians, sovereign power to shape the law of the land.

It is by protecting and preserving that precious inheritance, which sharply contrasts with the technocratic, oligarchic, or despotic political traditions which prevail in much of the rest of the world, that preserves the interests of the people.

However, a modern change in that settlement has upset the delicate balance of our organic British constitution.

Changes in judicial practice have arisen partly because of overarching legislation such as the Human Rights Act – which, for
example, gives violent criminals the same ‘fundamental’ rights as their victims(!).

Such legislation has
encouraged an insidious mission creep, facilitating a rise in ‘judicial activism’ which goes beyond the proper role of the courts to enforce laws made in Parliament.

Recently, and very publicly, this emboldened certain members of the judiciary to stimy leaving the EU by
refusing the Prime Minister’s attempts to break the 2019 Brexit deadlock, the unhappy result being to prop up a gridlocked Parliament
obsessed with countering the EU referendum result.

A fundamental issue is at stake here. We in Parliament are answerable to the people because our legitimacy is derived from the people.

Although it is vitally
important that a proudly
independent judiciary plays its essential part in our constitutional settlement, it is not an alternative, competing source of political power.

It is just not right for the mission creep of judge-made laws to cement the exercise of power by those who are not directly accountable to the people.

The courts ought to be focussing on the legality of decisions taken and whether they stand up to appropriate levels of scrutiny. That is their business.

The judgement in the politically motivated case brought by Gina Miller on prorogation, which challenged the prerogative right of our elected Prime Minister to dissolve Parliament and begin a General Election, was truly exceptional and, in my view, perverse.

It is fundamental to our constitution that the
appointment of ministers, the dissolution of Parliament and, by extension, prorogation, are matters for the Crown in Parliament and not the courts. If it were otherwise, uncertainty as to the relative power of the Queen’s Ministers, the legislature and the courts would be bound to result.

One might argue that when the Supreme Court was created by Mr Blair, all this was almost bound to happen.

The very existence of a Supreme Court,
detached from Parliament unlike their predecessors, the Law Lords, would inevitably extend their powers into matters which the Attorney General has called “high politics”.

Our system of Government has been shaped by an organic constitution consisting of convention,
established practice and legislation, nurtured by England’s particular history into a system never bettered across the world (emulated by some of our commonwealth cousins with their Westminster styles of governance).

It is long past time that the products of Tony Blair’s constitutional vandalism were cast aside. The Judicial Review and Courts Bill marks the next step on the path, begun by Brexit, to restoring our sovereign Parliament of the people, for the people.

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