Douglas Carswell: Restore the State (Part 3): Judicial Reform – the six steps to restoration

Douglas Carswell is the President & CEO of the Mississippi Center for Public Policy. He was previously the MP for Clacton. 

This is part three of a weekly mini series exploring how to fix the workings of the British state. You can read part one – ‘Britain’s state of dysfunction’ – here and part two – Britain needs a Department of the Prime Minister – here.

Judges in Britain are supposed to interpret the law. Increasingly they decide what the law should be. Courts exist to apply the law to resolve disputes. Instead, they seem to apply the law in a way that determines public policy.

There has over the past generation been a process of judicial aggrandisement. Judges have assumed a role they were never previously possessed.

Proponents of giving UK judges more power argue that doing so strengthens the rule of law by ensuring government actions are lawful, transparent, and accountable. Judicial oversight, they suggest, protect individual rights and prevents any abuses of power. An activist judiciary, they suggest, reinforces the separation of powers, maintaining checks and balances essential for a democratic system.

The reality is that judicial aggrandisement is one of the chief reasons why Britain is so badly run. Far from making Britain better, giving judges more oversight is one of the reasons that those we elect to run the country struggle to get things done.

Britain has not built a new major runway in almost a quarter of a century, while air travel has increased by nearly 50 per cent. Yet in 2023, the Court of Appeal blocked a proposed Heathrow runway, ruling that the government failed to adequately consider the Paris Climate Accord. A whole tranche of major infrastructure projects have been abandoned after courts effectively blocked them.

For decades, North Sea oil and gas supplied a lot of our energy needs. Earlier this year, the Court of Sessions in Edinburgh ruled the government’s approvals of new North Sea oil and gas projects unlawful. Meanwhile we rely on imported gas.

We have become inured to new of immigration judges refusing to deport illegal immigrant on the most fatuous grounds.

In Britain’s second largest city, Birmingham, municipal government struggles to collect rubbish and provide basic services running.

Why?

Not only did a court rule that there should be equal pay between jobs such as cleaners and caterer, which were historically female-dominated roles, and typically-male dominated roles, such as refuse collectors. The court decided that those who had been what it deemed underpaid, should be entitled to compensation as a form of backpay – despite having accepted and worked in those roles for years. The ruling effectively bankrupted the city.

The cumulative effect of judicial overreach is debilitating. A successful society cannot continue to be run this way. An incoming administration needs to take steps to curtail the power of the courts to make decisions that belong to Parliament.

Judicial overreach, some suggest, is largely a consequence of poorly drafted legislation. Our poor judges, we are asked to believe, are merely interpreting laws as written. If those that make our laws want things done differently, they should take more trouble to write better Bills.

The trouble with such claims is that they ignore the now numerous cases there have been where judges have applied laws in ways that clearly contradict Parliament’s explicit intent. A striking example is the Supreme Court’s 2023 decision to strike down the government’s Rwanda deportation policy, despite its clear legislative backing, highlighting a pattern of judicial rulings that override the will of elected lawmakers.

Judicial overreach has been fuelled by a series of reforms since Labour’s 1997 landslide victory. The Human Rights Act of 1998 incorporated the European Convention on Human Rights into UK law, granting judges broader authority to scrutinise government actions and public policy based on a vaguely worded charter. The Constitutional Reform Act of 2005 furthered this trend by establishing a judicial appointments commission and creating the Supreme Court, replacing the House of Lords’ Appellate Committee, thereby enhancing judicial independence and influence.

It’s not just the law that has changed. In recent decades, a new generation of lawyers, confident in their own moral certainty and the superior authority of judges over politicians, has emerged. They view judicial restraint not as a virtue but as a flaw.

The justification for abandoning judicial restraint, we are told, is an overbearing executive. How can our executive branch of government be so overbearing if it cannot get much done? They talk of judges being able to “speak truth to power,” yet fail to recognise that the justices are themselves the powerful to whom certain truths need telling.

If the judiciary are there to guard us against tyrannical overreach, where were they when Covid lockdowns incarcerated us in our own homes? If human rights laws safeguard our freedoms, why did they not apply to those imprisoned for boorish posts on social media?

The succession of Blairite governments that have run Britain over the past three decades put in place a judicial apparat that now serves as a rampart against change. It makes public policy on immigration and asylum, climate change and the environment, criminal justice and much else immune to what the public actually want and vote for. Until we deconstruct the judicial apparat, no government will be able to reverse direction.

These are the essential steps needed to demolish the judicial apparat and save the country:

1. Judicial Review Reform Act

The first step must be an Act to curtail the scope of judicial review, and it must take effect within the first few weeks of an income administration.

The aim of this legislation would be to revise CPR Part 54 (formerly Order 53), which governs judicial review applications in the UK. Originally enacted in 1977, the current rules permit broad standing under the “sufficient interest” test and offer expansive remedies, resulting in around 5,000 annual challenges by 2023, targeting policies like the Nationality and Borders Act 2022 and the Universal Credit rollout. The Act aims to refocus judicial review on clear statutory breaches, rather than discretionary policy disputes, by:

• Restricting Claimant Standing: Replacing the vague “sufficient interest” test with a stricter requirement, limiting applications to individuals “personally and materially affected” by a decision.
• Tightening Permission and Remedies: Prohibiting courts from imposing policy solutions, ensuring judicial review corrects legal errors without encroaching on policymaking.

2. Judicial Conduct and Tenure Act

The second step must be legislation to amend Section 11(3) of the Senior Courts Act 1981, which currently allows the removal of senior judges only through a parliamentary address for incapacity or misbehaviour—a process last used in 1830.

The Act would grant the Lord Chancellor authority to remove senior judges whose rulings consistently demonstrate personal activism rather than adherence to strict statutory interpretation. The current high bar for removal leaves little recourse for addressing activist rulings that erode public trust in the rule of law. By enabling the Lord Chancellor to tackle such conduct, the Act seeks to ensure judicial decisions remain grounded in legal texts, promoting impartiality and restoring confidence in the judiciary.

3. Judicial Appointments Reform Act

This legislation would repeal key sections of the Constitutional Reform Act 2005 to dissolve the Judicial Appointments Commission (JAC) and restore appointment powers to the Lord Chancellor, who is accountable to Parliament. Nominees appointed by the Lord Chancellor would be subject to a confirmation hearing by a Joint Committee of both Houses of Parliament, requiring a simple majority.

To be enacted within six months, the Act would require judicial appointees to demonstrate strict adherence to statutory interpretation and judicial restraint.  All judges appointed under the JAC, including immigration tribunal judges, would have to reapply for their jobs under a process overseen by the Lord Chancellor.

4. Supreme Court Abolition Act

This legislation would dissolve the UK Supreme Court, established under the Constitutional Reform Act 2005, and restore its functions to the Appellate Committee of the House of Lords, as it operated before 2009.

Within 12 months, the Act would repeal relevant sections of the 2005 Act, with the Lord Chancellor, accountable to Parliament, overseeing the transition and appointing Committee members based on strict statutory interpretation and judicial restraint, evaluated through a merit-based framework prioritising legal precedent. The Supreme Court’s creation introduced an independent body perceived as overstepping its constitutional role through judicial activism, lacking direct democratic accountability.

5. Human Rights Act Repeal and ECHR Withdrawal Act

Withdrawal from the European Convention on Human Rights (ECHR) is often presented as a panacea. This is because judges often adjudicate on the basis of it. But it is not just the Convention on which judges adjudicate that we need to change, but the judges themselves. Without implementing steps 1 – 4 above first, merely leaving the ECHR will have little effect.

This Act would repeal the Human Rights Act 1998 and withdraw the UK from the European Convention on Human Rights (ECHR) within 12 months.

Repealing the Act and exiting the ECHR would restore Parliament’s authority to define rights, and the primacy of the common law in defining our rights.

6. Meritocracy Act

One of the paradoxes of the 2010 Equality Act is that it has overturned the ancient legal principle of equality under the law.

In place of equality, those with “protected characteristics” are now treated preferentially. Today, state bodies are legally required to tilt the scales against white Britons under the guise of “equality.”

This needs to end with a repeal of the Equality Act 2010 and a law that makes it unlawful to discriminate against individuals based on immutable characteristics, such as race or gender.