A Reform government will need good lawyers
Zia Yusuf has said Reform will not let lawyers run the country, but if they want to be as radical as they claim, they will need very good legal advice to prevent challenges in the courts, says Andrew Lomas
Last week, Nigel Farage outlined a series of changes that a Reform Government would make to immigration rules, including abolishing indefinite leave to remain. In the Q&A that followed, Zia Yusuf – Reform’s policy chief – was asked whether the changes would face legal challenges, to which he responded “the fact these questions are even asked in a country like this is just a function of learned helplessness… The answer is primary legislation and Parliament”. When quoted on X later in the day, Yusuf doubled down, stating that “Reform will not let lawyers run the country any more.”
Yusuf’s reference to a learned helplessness in British politics is a fair one: as a nation, we seem to have forgotten that Parliament can just do stuff, and instead look to the judiciary to stop things we don’t like. But our political culture also suffers from a learned laziness, with a ruling class who find it more convenient to govern via delegated powers (which are amenable to judicial review) rather than engage with the altogether more time-consuming task of persuading Parliament to pass primary legislation (which, as a matter of orthodox constitutional law, is not). This in itself increases the number of policies that can be held up in the courts, which in turn leads to the fatalistic attitude that nothing can ever get done. Any shift in emphasis back to the central role of Parliament in our constitution is therefore to be welcomed.
However, switching to more of a reliance on primary legislation is not a complete answer on its own because, first, there are some things that cannot be legislated for, and second because Judges – whilst unable to strike down primary legislation – can (and do) apply a variety of interpretative glosses. For example, in JT (Cameroon) v Secretary of State for the Home Department, the Court of Appeal was required to interpret Section 8 of the Asylum & Immigration (Treatment of Claimants etc) Act 2004, which provided that when determining whether to believe an applicant for asylum “…a deciding authority shall take account, as damaging the claimant’s credibility” if the applicant for asylum had destroyed travel documents in transit or relied on forgeries on arrival.
Lawyers on behalf of the appellant asylum seeker (whose application for asylum had been refused because he had arrived in the UK on false papers) argued that Parliament could not have intended to fetter any tribunal’s assessment of his credibility, despite the clear and obvious wording of Section 8 to that effect. The Court of Appeal agreed and changed the meaning of Section 8 by implying the word “potentially” before “damaging the claimant’s credibility”, an interpretative fudge which allowed the Court to avoid addressing the appellant’s other argument – that Section 8 should be struck down. Such an approach to interpretation points to the challenges that even clearly drafted statutes can face (and a lot of law is less than clearly drafted).
Parliamentary sovereignty is not unlimited
Moreover, whilst the conventional view is that parliamentary sovereignty is unlimited, the prospect that the Courts might ‘discover’ some limits cannot be discounted, especially in the context of a Reform Government seeking to ‘move fast and break things’ (for example, by leaving the ECHR). In this regard, when the Countryside Alliance’s challenge to the Hunting Act (which sought to ban fox-hunting) reached the House of Lords, Lord Steyn thought that “it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism.” Similarly, Lord Hope suggested that “Parliamentary sovereignty is no longer, if it ever was, absolute…” That the challenge even got that far was a result of the then Attorney General conceding that the Courts had the jurisdiction to consider whether an Act of Parliament was valid or not, a concession that may have been politically expedient, but that was contrary to a number of provisions (including Article IX of the Bill of Rights) and may have created a precedent for challenging primary legislation again, in the future.
if Reform is serious about hitting the ground running, it not only needs a cadre of capable MPs and ministers to draft, scrutinise, and debate the bills that will become the legal underpinnings of its programme – which from a starting point of five will be a significant challenge in itself – but that the role of Attorney General in any Reform government will be critical
What this all points to is that if Reform is serious about hitting the ground running, it not only needs a cadre of capable MPs and ministers to draft, scrutinise, and debate the bills that will become the legal underpinnings of its programme – which from a starting point of five will be a significant challenge in itself – but that the role of Attorney General in any Reform government will be critical. Specifically, it is not just that the Attorney General leads for the government on significant cases in court (and therefore has a stake in their success), they are also responsible for advising the cabinet, and for issuing legal risk guidelines which govern how civil servants assess and present risk to ministers. The current version provides that, even where a policy has a respectable legal argument, it still “may not be appropriate” to proceed where, for example, “the fundamental rights of individuals are significantly undermined.” The guidelines themselves can therefore act as a fetter on policy.
In short, while Zia Yusuf might not want to let lawyers run the country, a Reform government will still need a proper lawyer to advise and argue on its behalf, as well as setting the tone more broadly for how the civil service will approach and assess prospective policies. Whilst the next election might be four years away, it might also be a lot sooner: better that they start looking for that person now.
Andrew Lomas is a barrister at One Essex Court