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Queen’s Speech - Debate (3rd Day)

Part of the debate – in the House of Lords at 6:54 pm on 8th January 2020.

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Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour 6:54 pm, 8th January 2020

My Lords, as the noble and learned Lord, Lord Brown, has just said, there are ways of having a discourse about legal judgments even by our Supreme Court. One should conduct oneself in a sane and careful way. Last week we were subjected to the unseemly spectacle of the noble Lord, Lord Howard, red in face, frothing with indignation, fulminating against the judges of the Supreme Court and saying that they had committed a heinous outrage. They had reached a decision he did not like. The Supreme Court had found that the Prime Minister had behaved unlawfully in his attempt to prorogue Parliament; we all know the story and about the Policy Exchange debate.

What made the outburst all the more risible was that not very long ago the noble Lord, Lord Howard, had very loudly claimed that he wanted to leave the European Union to get us out of the European Court of Justice, to restore faith in our courts and particularly our Supreme Court, and to put it back at the apex of our legal decision-making—somewhat different. It almost seems that the noble Lord is protesting too much. Maybe it is the law, the rules and the decision that he does not like, whatever court he disagreed with.

I remind the House that that decision was unanimous and made by some of our finest legal brains, but that does not matter a jot to some. The decision was portrayed by the right wing of the Conservative Party as Brexit bias. Jacob Rees-Mogg branded the decision a “constitutional coup” and the MP Desmond Swayne called for the Supreme Court to be abolished. Geoffrey Cox, the Attorney-General no less, questioned the moral authority of the court and suggested that we might have to look at how our judges are appointed, even suggesting that we might look to America. That has been terrific, it would seem. The idea was that we would test the political opinions of those being appointed. Leave.EU, the Brexit campaign group, declared that we had an

“elitist Remainer logic at the top of our judiciary.”

We can laugh about all this stuff, but it is actually distinctly and seriously damaging. We are talking about trust in our constitutional arrangements, and if anything is destructive of trust it is disgracefully dismissing our senior judiciary in this way. Law matters, the rule of law matters, and I am glad that Robert Buckland, currently in the position of Lord Chancellor, is more robust in his protection of it than many of his colleagues.

Of course, the role of the courts has grown in our societies, because our societies have all become more complex. There has been a consequential growth in governmental functions, and at times they have to be challenged. The responsibility of judges is to resolve disputes not just between citizens but between citizens and the state. Judges have the duty to protect citizens against the overreach of Governments.

I heard it suggested by one of our newcomers—I welcome the noble Lord—that the remedy is to vote the rascals out. Tell that to the Hillsborough families who time and again had to seek a proper inquest. Tell that to the parents of the young woman soldier who committed suicide; then, after an inquest made after a judicial review, it was found that she had been subjected to a culture of bullying and harassment.

Much of the legislation that we pass in these Chambers has gaps that fail people, and there have to be methods to deal with injustice. The judges in a nation have to be free to exercise their judicial powers independently of the state, the media, powerful individuals and entities such as large corporations and so on. We know that matters. It is not enough just to talk about the rule of law; we have to mean it.

I share the concerns of others about what the purpose of this constitutional convention might be. The questions of any sensible person should be: “Are such proposals for constitutional change really a democratic necessity or a cynical attempt by the new Government to bolster their power? Are there plans to curtail the power of our judges? Does updating human rights law mean more rights or fewer rights for certain people?” I think I know the answer. There is clearly a policy yet again to limit access to judicial review, a process by which people can challenge decisions made by public bodies. Again, is that not liked because it was used to secure the judgments in the Supreme Court on Brexit? Was it displeasure with these rulings that motivates the updating?

I want to say this: Mr Johnson is willing to break laws, evade scrutiny and mislead the public in order to secure power and get his way. I am afraid that that is true of narcissistic, authoritarian Governments the world over; they are usually led by such people. I am concerned that he has oft got at his elbow the malign force of Mr Cummings, who believes in a scorched-earth policy when it comes to some of our most valued institutions. We must be careful: if we value our liberty and democracy, we will all have to be on our mettle. Complacency will carry a very heavy price.