THE Conservative Party manifesto for the December 2019 general election, which the Conservatives won with their biggest parliamentary majority since Margaret Thatcher’s day, committed the party to establish a Commission on the Constitution, Rights and Democracy. The mandate of the Commission would have been clear: to reset the balance of power between parliamentary government and the courts, diminishing the powers of the judiciary and restoring (or strengthening) those of ministers and parliament.

Yet, despite that majority, the Commission has not been set up – and nor will it be. In part this is because of the changing politics of our highest court – the UK Supreme Court. In its recent case law, particularly as regards constitutional law, the Court, under its new Scottish President, Lord Reed, has taken a markedly (small-c) conservative turn.

The anger that had led the Tories to place the Court in the crosshairs of its threatened Commission on Rights and Democracy has dissipated. A desire to clip the wings of excessive judicial politicking remains but all the indications are that this desire is now shared with the members of our highest court, rather than targeted at knocking the Supremes forcibly off their pedestal.

The story of why the Conservatives first proposed and then drew back from the idea of a Commission on Rights and Democracy is instructive. Where did the idea come from?

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The short – but rather inaccurate – answer is that the Tories were simply outraged by the Supreme Court decision in September 2019 that found Boris Johnson to have acted unlawfully in advising the Queen to prorogue Parliament.

Giving the judgment of the Court, its then President Lady Hale wore a striking brooch in the shape of a large spider. That black spider emojis were quickly added to the social media accounts of Mr Johnson’s political opponents did nothing to arrest the suspicion that the Court’s judgment was politically motivated.

As it happens, I never shared that view, but when Supreme Court justices become heroes – or villains – in a culture war, a constitution is in trouble (just as it is, by the way, when a tabloid newspaper uses its front page to portray appeal court judges as “enemies of the people”, as happened after one Brexit-related court case).

The longer – and better – answer is that conservative-minded commentators had been growing unhappy for years about the ways in which the law of judicial review and the Human Rights Act combined to give judges too much power and, particularly, too much power to rule on matters which, in a democracy, ought to be left to parliaments and not governed by judges. Thus, the 2019 manifesto pledged to “update” the Human Rights Act and judicial review “to ensure there is proper balance between the rights of individuals … and effective government”.

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This work is underway, albeit more modestly than if it had been undertaken by a grand new Commission on the Constitution. An independent panel reviewed aspects of the law of judicial review, reporting in January this year. Its recommendations were accepted by the government and those which require legislation are included in the Judicial Review and Courts Bill, published last month. The Bill’s reforms number two in total. Neither is revolutionary. One gives the courts greater flexibility in the use of remedies; the other strengthens tribunals against judicial review.

That’s it. It’s hardly the assault on judicial overreach that was prefigured in the 2019 Conservative manifesto. Why so modest? In large measure, because the threat of an over-mighty judiciary, wielding ever more power at the expense of government and parliament, has receded. Lady Hale has retired, taking her brooches with her, and her successor has been remarkably adept at keeping his court united – with no dissenting judgments – in a series of cases this year which, taken together, signal a decisive shift in the politics of our highest judiciary.

For example: in February Shamima Begum lost her argument that the government should not have deprived her of her British citizenship and should not have refused her re-entry to the UK. Deciding what is necessary in the name of national security is a question for ministers, the Court ruled, not for judges.

Likewise, in July the Court threw out all the arguments put by the Child Poverty Action Group that the two-child limit on the availability of child tax credits was somehow unlawful. Social security entitlement is a matter for Parliament, the Court noted, and the judiciary should be slow to come to any conclusion that Parliament’s decisions in this area are disproportionate.

In these and several other decisions this year, judicial review has been reined in, not by force of government legislation but because the Supreme Court appears to be drawing a line under the expansionist case law of the recent past and reasserting a more orthodox view of its powers.

In this regard Britain is far from unusual. In other parliamentary democracies in the common law tradition (Canada and Israel being notable examples) the tides of judicial relations with government ebb and flow, just as they do here in the UK.

In London, the Government has noticed. Its most recent pronouncements on the complex relationship of rights to democracy have been balanced and conciliatory, underscoring a desire (which the Supreme Court unquestionably shares) to ensure that both the will of Parliament and the rule of law are safeguarded at the same time. For now, the culture war between the human rights lawyers and those who thought that Parliament needed aggressively to take back control has been suspended.

Other constitutional battles no doubt await in the future, not least if the lawfulness of any future independence referendum Bill is referred to the Supreme Court. But the climate in which such battles will play out has changed utterly from the dark, angry and turbulent days of 2019.

Gone is the hostile judiciary. And gone, too, is the equally hostile political backlash. Instead, we are entering a new period of calmer relations between our governing institutions and our courts.

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