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Tue 25 January 2022

David Gauke believes that a proposal to retrospectively overrule Supreme Court decisions stems from the Prime Minister’s view that any constraint on his power is “intolerable”

Boris Johnson’s plan to seize the power to overrule any Supreme Court decision he dislikes is an “extraordinary” attack on the rule of law and an apparent attempt to wipe out what he sees as “intolerable” checks on his power, the former Conservative Justice Secretary David Gauke has told Byline Times.

Ministers are considering plans to bring in an annual ‘Interpretation Bill’ which would allow them to throw out any rulings they disagree with, The Times reported on Monday.

The plan reportedly stems from the Prime Minister’s anger over two separate decisions by the Supreme Court –the final court of appeal in the UK for civil cases – in recent years.

In 2016, it ruled that the then Prime Minister, Theresa May, needed to hold a vote in Parliament before triggering Brexit through Article 50. Three years later, it found Johnson’s attempt to suspend Parliament in order to force through Brexit to be unlawful.

David Gauke, who sat alongside Johnson in Theresa May’s Cabinet at the time of the first case brought by the lawyer Gina Miller, told Byline Times that it was clear that the Prime Minister is “still very sore” after the Supreme Court ruling on prorogation and suggested that there was a desire to “bash the judges” in retaliation.

He said that the Prime Minister’s new plan also appeared to be part of a broader wish to remove any remaining checks on his powers, and that the proposed bill – which would allow ministers to retrospectively overrule decisions made by the courts – would severely undermine the rule of law.

“It comes down to this sense, I think particularly it has to be said in Number 10, where there is a view that any constraint on the Prime Minister’s power is intolerable”, Gauke told Byline Times.

“If their suggestion is that every year the Government looks at all the cases where it doesn’t like the decision that’s been made by the courts in judicial review, and then just simply re-decides those decisions again, and retrospectively says ‘this is what the law states and this is what we’ve always intended and the courts were wrong’, then that is an extraordinary course of action that undermines the rule of law and the way that a sophisticated country operates.”

Gauke said that Johnson must understand that “a proper system does require checks and balances”.

“If you take those checks and balances away, then that concentrates power, particularly in the hands of the executive that, in my view, would be very unwise,” the former MP for South West Hertfordshire added.

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‘Legal Nonsense’

The former Justice Secretary questioned why Boris Johnson was so keen to hand himself this power, given that his Government’s large majority already enables him to change laws that it disagrees with.

“When it comes to the prorogation of Parliament, if it wants to put that on a statutory footing, so that the courts don’t interfere again, it can do so,” he told Byline Times. “It’s perfectly capable of doing that, and that that is right and proper, we can have a debate over the policy terms of that but essentially, they’re entitled to do that.

“What then they’re not entitled to do under any sensible legal system is to look at the cases that they don’t like the ruling of and retrospectively overturn the judgments in those individual cases and decide that the law is, and always has been, something else. That is a legal nonsense.”

Gauke said that he was sure that the proposals would be thrown out by the House of Lords if the Government was to bring them forward.

“The House of Lords would strike this down”, he said. “I cannot see how this would get through the House of Lords possibly on any occasion, and certainly, it would face enormous resistance in the House of Lords.”

He believes it would be “astonishing” if the plans were forced through by Johnson’s Government.

 “It’s such a bad idea and so preposterous that it would astonishing if this was to come to fruition”, he added.

A spokesman for the Prime Minister on Monday described the reports as “speculation” and said he was “not aware of any plans” to pursue the plan as reported.

“I’m not aware of any plans to amend… the approach we’re taking,” the spokesman said.

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