Johnson’s official spokesman later said: “I’m not aware of any plans in that area. We have said repeatedly we
fully respect the independence of the judiciary and have no plans or the political appointments of judges.
Speaking to the committee, Lord Reed played down any suggestion that an overhaul of the courts should
take place as part of any constitutional reform.
He said: “I don’t myself see the courts as being the primary area for concern.
“It strikes me that we have just been through a period which put our constitutional arrangements under a
great deal of pressure. There was a stress-testing of our constitution.
“While the decision taken by the courts in the prorogation case was obviously not greeted with universal
acclaim, I don’t myself feel it revealed an inherent weakness in the courts. If anything the reaction has
suggested the opposite.
“It’s a striking feature of our constitution the extent to which it depends on conventions and on a sort of
culture of shared assumptions about how people should behave.
“There might be merit in having rather more written down than there currently is.”
Giving the example of the 1994 Nolan report into Westminster sleaze, which led to the establishment of a
written set of standards for public life, Lord Reed said: “There is scope for more of that.”
He added: “I think that some of the tensions we saw between the government and parliament might have
been alleviated by having clearer standards and better mechanisms for assessing whether they have been
complied with.”
Lord Reed said the commission’s review “shouldn’t start from the premise that judges are eager to
pronounce on political issues”, adding: “The true position is exactly the opposite.”
Judges were “careful to avoid straying into what are genuinely political matters”, he said.
“Do I see us taking on the role the constitutional courts have in other countries? It is not possible because
we don’t have the powers and we don’t want to have the powers.”
And in response to claims that the courts had pushed the boundaries of human rights protections,
particularly in immigration cases and allegations of war crimes by UK troops, he said: “We don’t make it up
as we go along. It is certainly true that a great many things we look at now wouldn’t have been looked at by
judges 100 years ago or even 50 years ago.
“To some extent it’s because government wasn’t doing these things 100 or 50 years ago. But it’s also
because parliament has enacted a lot of laws – notably the Human Rights Act and European Communities
Act – which have given the courts a duty of enforcing laws which reflect a constitutional culture which is
not the traditional British constitutional culture.”
Lord Reed added: “If parliament passes the Human Rights Act and it has executorial effect to apply to
British forces in Iraq, we have to give effect to that. It is not a power grab by us, but us giving effect to an
approach to the (human rights) convention decided on by the Strasbourg court and parliament.”
He said that proposals to curtail the right to seek judicial review, floated by the prime minister on the
grounds that too many are being brought for political reasons, “might conceivably be a matter of concern to
us, but it would depend on what they were”.
Lord Reed told the committee he expected the Supreme Court to be consulted on the commission’s work,
but this had not yet happened.