A former leader of the Tories has claimed some judges ‘distort’ the law to interpret it to ‘reach the result they want to achieve’.
The government has refused to rule out changes to the way judges in the court are appointed after it announced plans in the Queen’s Speech for a “constitution, democracy and rights commission”.
The move was seen by some at Westminster as an attempt by prime minister Johnson to exact revenge after the court’s ruling on prorogation.
He has previously hinted at US-style confirmation hearings for Supreme Court justices, suggesting they should be subject to “some form of accountability”.
Now Lord Howard of Lympne, a former barrister, has criticised the Supreme Court for ruling that Boris Johnson’s prorogation of parliament in September was “unlawful”.
He claimed that judges have “increasingly substituted their own view of what is right for the view of parliament and of ministers”.
In an interview on BBC Radio 4’s Today programme, he questioned whether it should be elected politicians or unelected judges who make the law.
“What we’ve seen in recent years is a very considerable increase in the power of the judiciary, partly as a result of the expansion of judicial review,” he said.
“Partly because they were invited by Parliament under the Human Rights Act to enter the political arena by considering, for example, whether the measures that parliament had taken to deal with a particular problem were proportionate to the objectives they wanted to achieve.
“So, those two things have led to a significant increase in the power of the judges at the expense of Parliament and indeed government.”
He added: “Sometimes in order to reach the result they want to achieve, they … distort the meaning of the Act of Parliament of which they are interpreting.”
Lord Howard said the law states that proceedings in parliament should not be impeached in any court but that the outgoing Supreme Court president Baroness Hale said because prorogation was not a decision of parliament, it did not amount to a proceeding.
“Prorogation was clearly, of any ordinary view of the language, a proceeding in parliament,” he said.
Asked if the Supreme Court’s ruling was a political act, he replied: “I think that judges have increasingly substituted their own view of what is right for the view of parliament and of ministers.”