In focus: Jenrick blasts 'insane' JR costs rules as Conservatives let rip on justice

It was clear from the title – ‘Judicial Activism’. Shadow justice secretary Robert Jenrick’s keynote speech at the Conservative party conference this week was never going to be a stirring encomium to the bench. But the strength of feeling was still unexpected. For all his platitudes about respecting and revering the judiciary, the tone and messaging were consistent: too many judges are not doing their jobs properly, and the system requires more scrutiny and public accountability. 

Jenrick’s speech focused on immigration judges, many of whom, he said, had links to migrant charities and had fought as lawyers to prevent immigrants from being deported.

‘The public is entitled to ask: how independent are they?’ he said. ‘[These judges] dishonour generations of independent jurists who came before them and they undermine the people’s trust in the law itself. Judges who blur the line between adjudication and activism can have no place in our justice system.’ 

Jenrick’s solution is for the lord chancellor to be given back the power to appoint and remove judges, as part of a pledge to reverse Tony Blair’s constitutional reforms. Political appointments, as the lord chancellor is now a politician. 

But the scope of the Conservatives’ planned changes is not limited to rooting out a few immigration judges perceived to be biased. 

As ever, the fringe events gave a greater insight into what else the party might be considering. Jenrick, in between batting off questions about leadership ambitions, said there was a particular problem with the number of judicial reviews in the courts, which he claimed were ‘mummifying economic growth’ by blocking housing developments and infrastructure projects. 

'We have to be careful around encroaching too much on trust and confidence in our judiciary'

Kieran Mullan

The one-way costs rules were responsible for encouraging as many as 3,000 JR applications last year, he said. It was ‘absolutely insane’ that parties bringing JR claims had to pay a maximum of £5,000 towards the other side’s costs when the government had potentially spent millions. ‘We need to get the courts out of the way of some of these decisions,’ he added.

A member of his shadow justice team, Kieran Mullan, was also in combative mood as he addressed a packed event on justice issues jointly hosted by the Law Society. Mullan, a medical doctor, said his own profession had gone through a cleansing process in terms of accountability and that now may be the time for the judiciary to get the same treatment.

‘We have to be careful around encroaching too much on the trust and confidence in our judiciary,’ he said, before drawing again on the comparison with the medical profession. ‘We don’t look at everything a surgeon does, but we might look at surgeons’ outcomes and identify where a surgeon’s practice is way out from everyone else’s.’

Mullan would not be dissuaded that judges had to be more accountable, recounting the story of a constituent foster carer who came to him after a family court judge had ruled that a child should live with their birth parents. The child was then left with life-altering injuries after being assaulted. Mullan said he had tried in vain to get an explanation from the judiciary about what had gone wrong.

The opportunity for audience participation became a microcosm of how the Tories approached the week. Peer Baron Sandhurst and former MP and justice committee chair Sir Bob Neill both interjected to explain to Mullan how his ideas could put at risk the independence of the judiciary. But it was clear that such  opinions are now on the fringes, and Mullan’s radical proposals were party policy.

Certainly, Sandhurst and Neill would have been horrified by a contribution from former home secretary Suella Braverman, who remains a popular figure among members. She called for a ‘culture of judicial deference’ to be restored, where judges reflect the will of parliament rather than their own political preferences. Suggesting a ‘sweeping out’ of judges perceived to be involved in activism, she put forward a regime of periodical reviews of judicial decisions by parliament.

The Gazette asked afterwards if she could inadvertently undermine the reputation of the UK’s legal system. Braverman said she retained the utmost respect for judges but was not going to ‘slavishly defend’ everything they did. ‘It is my democratic duty to point out when [judges] are doing things wrong,’ she added.

Along with the party’s commitment to leaving the European Convention on Human Rights, justice matters took on an unusually high profile during a week in which much of the narrative was about what was once a formidable electoral fighting machine struggling to respond to the rise of Reform.

The now seemingly rare breed of one-nation Tories may flinch at the notion of undermining the judiciary, but that is where the power base in the party is right now.

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