Dissing the rule of law

Courts asked to decide whether lord chancellor has broken his oath

Legal proceedings have been launched against the lord chancellor, Robert Buckland, by an Oxford physics professor who accuses the cabinet minister of failing in his statutory duty to respect the rule of law.

Solicitors acting for Professor Joshua Silver (pictured) said they had issued a claim for judicial review yesterday. The law firm Asserson said their client was seeking a declaration from the High Court that Buckland was in breach of his oath of office.

The proceedings relate to the former part 5 of the United Kingdom Internal Market Bill — which was struck out by the House of Lords on Monday but could be reinstated by the Commons next month. If it becomes law, part 5 would allow ministers to to make regulations n breach of international law. Judicial review of such regulations would be curtailed.

The government legal department says Buckland has not acted unlawfully. He also accuses Silver of a ‘flagrant breach’ of the Bill of Rights 1688, which protects parliamentary privilege. Article 9 says

That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

Buckland’s assertion is denied by Silver’s counsel, Khawar Qureshi QC of Serle Court chambers, who says there’s no attempt to impede legislation or decide whether what was said in parliament was right or wrong.

If the case reaches a full hearing — and that may depend on whether Silver is granted the protective costs order he is seeking — then the courts will have to decide whether the lord chancellor’s oath is an issue on which the courts can rule.

By statute, each holder of the office must swear to respect the rule of law. Section 1 of the Constitutional Reform Act 2005 also says:

This Act does not adversely affect—

(a) the existing constitutional principle of the rule of law, or

(b) the Lord Chancellor’s existing constitutional role in relation to that principle.

The meaning of this section has never been tested in the courts.

Silver explained why he was taking legal action:

I am very concerned that our government is ignoring overwhelming and repeated protests from senior retired judges, former prime ministers, parliamentarians and academics that its conduct will erode trust and confidence in the United Kingdom. The rule of law is the foundation for any democratic society. We as citizens need a lord chancellor as an effective and accountable guardian of the rule of law.