Back in your box, attorney tells judges

Suella Braverman pushes the constitutional boundaries

The attorney general’s attack on the judiciary this week may lead to some lively exchanges within the Cambridge law faculty. Suella Braverman’s speech to the Public Law Project’s conference was promptly eviscerated by Mark Elliott, chair of the faculty and professor of public law. Braverman’s special adviser, who read the draft she wrote, suggested some quotes and agreed with its sentiments, holds a research fellowship in Cambridge — though he’s based at a different college.

Suella Braverman QC MP

The attorney’s message was summed up in this striking passage:

One of the reasons for the long-term health of the constitutional arrangements of this nation has been admirable restraint shown by the courts when it comes to matters of high political controversy. But the radical departure from orthodox constitutional norms severely threatens the delicate balance inherent in those arrangements.

What Braverman and those who endorsed her remarks seem unable to grasp is that by trumpeting a political message she is pushing the constitutional boundaries herself — the very thing that she is accusing the judges of doing. This speech could easily have been delivered by the deputy prime minister, lord chancellor and justice secretary (as Dominic Raab likes us to call him). The more that Braverman politicises her ancient office, the harder it will be for her to persuade the public that she can act independently in the public interest while remaining the government’s chief legal adviser. As she says, the constitution is a delicate balance.

Parliamentary sovereignty

This speech, like others we have heard from Conservative ministers, is a paean to parliamentary sovereignty. Recent decisions by the courts, Braverman says, have strained that principle and introduced uncertainty into the constitutional balance:

I accept that there are debates as to the proper scope of parliamentary sovereignty, and how and when the courts should intervene. However, it is crucially important that we neither permit, facilitate nor encourage judicial review to be used as a political tool by those who have already lost the arguments.

Yet again, we are treated to the well-worn paraphrase of Clausewitz — firmly rejected by senior judges — that litigation has become the continuation of politics by other means. And yet, on her own figures, the government has acted unlawfully in just over a third of the legal challenges brought against it. “It is vital that judicial review does not become the vehicle of choice for failed political campaigners,” she says. Instead of blaming those who try to put matters right, she would do better to improve government decision-making in the first place.

It’s worth remembering who started some of the fights she cites. The government would not have lost the Unison case in 2017 if the former justice secretary Chris Grayling had not had not removed access to justice from people with employment claims. Gina Miller would not have won her two claims if the government had acted lawfully when triggering Brexit and suspending parliament.

There is scope for arguing that the courts went too far in some of the cases Braverman mentions — just as there were claims that turned out to be premature or misguided. But those claims would not have been brought if successive governments had not initially pushed the boundaries, leaving courts to redress the balance where that seemed necessary. And the attorney is not going to win any more appeals by speculating “that in a future case the Supreme Court might again choose to intrude upon territory well beyond its scope and in doing so usurp the power that should be the sole preserve of those directly answerable to the people”.

Elliott’s main criticism is summed upon four tweets:

Mark Elliott @ProfMarkElliott

Judicial review cases can and do quite properly arise in sometimes contentious political contexts. But this does not mean that the use of judicial review in such contexts is improper. (6)

Mark Elliott @ProfMarkElliott

As the Supreme Court correctly said in Miller II, a legal question does not cease to be a legal question simply because it is surrounded by contested or controversial political issues. (7)

Mark Elliott @ProfMarkElliott

Nor does the Attorney-General's claim that judicial review should not be open to those who have 'already lost the argument' make any sense. It implies, wholly illogically, that *legal* challenge should be unavailable to those who have lost a *political* argument. (8)

Mark Elliott @ProfMarkElliott

This conflates legal and political forms of accountability. By doing so, the Attorney-General falls into precisely the trap that she claims (incorrectly) that the courts have fallen into. (9)

Judicial review

Braverman pins her faith in the Judicial Review and Courts Bill, which is expected to have its second reading in the Commons next Tuesday. But, as Elliott points out, this has nothing to do with parliamentary sovereignty. Nor will it do anything about proportionality as a ground for judicial review, which is another of Braverman’s targets. As I explained earlier this week, the bill may fetter the judges’ discretion. It will deter some claimants from bringing claims. And it will limit the number of challenges in immigration cases.

But that’s all — unless Braverman is telling us that Raab is planning to amend the bill he inherited from Robert Buckland.

As far as I can see, the justice secretary is much more interested in human rights reform. A panel headed by Sir Peter Gross has spent the past 10 months reviewing the Human Rights Act 1998 and it will submit its report to the justice secretary next week. Before he was sacked to make room for Raab, Buckland appointed a senior official to deal with the report and the consultation that is to follow.

I would not expect the government to publish Gross’s report immediately. But Raab won’t be able to bury it either: the Ministry of Justice promised Gross at the outset that he would be allowed to publish the report himself.

Undermining judges

In her speech this week, Braverman was careful to say that she was not seeking to “undermine the judges or their judgments — which are of course both entitled to the greatest respect, and in our system are beyond reproach, and rightly so”. But then she went on to quote with approval a Cambridge academic of an earlier generation who said the judges’ “vital task” was simply “applying and interpreting the law”. No mention, then, of stepping in to develop the law in areas where parliament fears to tread; no mention of judges simply filling in the gaps. And then this:

Giving themselves grandiloquent tasks — guardians of constitutional principle, etc — as a mask for the arrogation of power properly that of the legislature or the executive lends credence to the criticism of judges as unelected officials who stray too readily into the realm of the demos.

That turns out to be a quotation too. But the government website struggles with footnotes and gives up completely when asked to indent a quoted paragraph, so it’s hard to tell who’s saying what.

With the pandemic far from over, keeping the show on the road is a huge challenge for the senior judiciary. Reducing the backlog of 60,000 cases awaiting trial in the Crown Court while introducing much-needed reforms is quite enough to be getting on with. Judges really don’t need to be told their job by an attorney who seems to believe that centuries of judge-made common law could have been created by parliament or should have been left to the government.

Update: I had been assured by someone who I thought was in position to know that Braverman’s speech had been written by her academic special adviser. I’m now told that was not the case and so I have corrected the opening paragraph of this piece.