Suella Braverman’s appointment adds another judicial sceptic to the government ranksby Jake Richards / February 18, 2020 / Leave a comment
The news of Suella Braverman’s appointment as the new attorney general has been met with widespread derision. Apart from pompous mocking of her relative inexperience as a lawyer, her apparent membership of a Buddhist cult and links to bizarre media performances, there is legitimate concern regarding her attitudes towards the judiciary. Civil liberty groups have expressed alarm about government plans to stifle judicial review of government decisions. The genesis of this policy appears, inevitably, to be Dominic Cummings—who has recently raged at court decisions and created a commission to, in the words of one insider, “get the judges sorted.”
Braverman, an ardent Brexiteer, is a perfect fit in this context. With a long-standing grievance against the Human Rights Act and a pristine illiberal voting record, a few weeks before her promotion, she wrote a piece arguing that “parliament must retrieve power ceded to another place—the courts.” The headline, while likely not written by Braverman, declared: “People we elect must take back control from people we don’t. Who include the judges.”
Braverman’s article setting out the case for reforming judicial review is at best confused and at worst wilfully ignorant. The reader does not have to work hard to identify the many contradictions.
In the opening paragraphs, Braverman apparently savours “the Diceyan notion” of parliamentary supremacy. She says that “to empower our people we need to stop the disenfranchisement of parliament.” Yet in the article, the only specific case studies cited of the “chronic and steady encroachment by the judges” are the decisions of the Supreme Court regarding the triggering of Article 50 in 2017 and the prorogation of parliament in 2019.
Both judgments were, at their simplest, the courts protecting the principle of parliamentary sovereignty against a government attempting to avoid scrutiny. In the former, the decision not to consult parliament on the triggering of Article 50 was overturned (though MPs then triggered it anyway). In the latter, the government’s unilateral decision to suspend parliament—without offering any compelling reason for doing so—was unanimously deemed unlawful. The courts were furthering the very goal Braverman allegedly wants to protect.
Braverman argues that the “catalyst for this proliferation” in so-called judicial activism was something altogether different: the Human Rights Act. She says she is not launching a “diatribe against human rights,” but decries the “strained interpretations of Article 8—the right to a private and family life.” For Braverman, it turns out, “inherently political decisions to do with immigration and extradition have been overturned by the courts.” The lack of any examples to support this assertion is itself revealing. In reality, judges undertake a difficult balancing act in immigration and extradition cases on the basis of individual circumstances, as prescribed by law passed by parliament. Moreover, the government is protected by numerous procedural hurdles to a successful application and well-established principles that action by the government may not be quashed because the judge simply disagrees with the merits of the decision. The judicial exercise is purposefully unpolitical.
Braverman’s more broad critique of alleged judicial activism is that “the law, blunt instrument that it is, cannot be the crucible for political questions upon which divergent views exist within our society.” Again, the examples she provides undermine her credibility.
She states that “political matters like Brexit or ethical questions like assisted dying” can only be dealt with by parliament. Indeed, the Supreme Court, on both issues (in as much as it has made any judgments on “Brexit”) has come to precisely this conclusion: parliament, not the executive nor the judiciary, should have the final say.
Assisted dying is perhaps the perfect example of the court explicitly asking the legislature to consider the matter. In 2018, the latest of a long line of assisted dying cases reached the upper courts. In “reluctantly” turning down permission to appeal, the SC once again stressed that any change to the law was for MPs and not the courts, while acknowledging that the issue was of “transcendent public importance.”
Braverman, in her blog, attempts to adopt Lord Sumption’s warning of an emerging “empire” of law, as set out in his Reith lectures in 2019. But it is lazy to assume Sumption’s concerns of attempts to find a “legal solution” for every human problem or every moral dilemma is a direct critique of judicial review. He has repeatedly warned against intervention by the government in the judiciary’s role within our constitution. His concern is about judicial attitudes, and the qualitative and quantitative nature of our law, as a cause of the decline in personal and familial autonomy. It is difficult to align No 10’s desire to “get the judges sorted” with this nuanced analysis (something it will soon discover in the unlikely event that Sumption leads the commission).
There are legitimate arguments about the effect of the Human Rights Act on the development of a litigious culture. Other academics have also written about the apparent tension between “European jurisprudence” and a rights-based constitutional model, and the UK’s common law system, with an unwritten constitution. However, these arguments have not been properly engaged with by Braverman (or many other Conservative politicians).
A brief review of Braverman’s stances on key social and legal issues since her arrival in parliament exposes how serious the consequences might be. Braverman voted against gay marriage. She voted against legalising assisted suicide—which remains against the law despite her complaining that the courts are intervening in the issue. She has previously voted against the rights of EU nationals already living in the UK to remain post-Brexit. She has consistently voted against measures to limit the ability of government to undertake mass surveillance of people’s communications and activities.
If this government’s aim of reforming the judiciary is less about concern regarding the constitutional balance, and more about removing any obstacles to its agenda, the implications could be profound.
It is easy to be unfair on Braverman—who says she is “not lambasting the judiciary”—and dismiss any calls for reform. There are undoubtedly issues about the “rights industry” and the role of claimant lawyers within it. There have been well-documented cases of scandalous practice from certain parts of the legal sector. These can be, and in many cases have been, met with more rigorous regulatory practice.
Ultimately, however, Braverman’s argument and this government’s attitude to judicial review reveals a shallow, populist zeal. The role of judicial review is deeply conservative and aims to protect individuals and businesses from an over-bearing state. Equally, the Human Rights Act merely enshrines the European Convention on Human Rights into domestic law—ensuring freedoms and rights enjoyed by us all are protected. It is worth remembering that the convention was originally proposed by Winston Churchill (Boris Johnson’s hero), and drafted by UK lawyers in the aftermath of the war.
The issue of judicial review is a useful litmus test for this government. Is it a serious administration, intent on ambitious reforms of our economy and politics, while respecting basic constitutional principles? Or is it in fact a chaotic cabal that will engage in further culture wars, dividing the country rather than healing our wounds?
The early signs are not good.