It seems unusual to be writing about a Cabinet Reshuffle without
talking about a new Justice Secretary. We seem to have had a new one every few
months, but Robert Buckland QC has survived so far. But we do have a new Attorney
General following the sacking of Geoffrey Cox. It is Suella Braverman, a relatively
unknown barrister who has been an MP since 2015.
We learn a lot about her from a blog that she posted on
Conservative Home on 27th January 2020 –
In this blog she says –
“…our
Parliament must retrieve power ceded to another place – the courts”
She
maintains this theme throughout –
“repatriated
powers from the EU will mean precious little if our courts continue to act as
political decision-maker, pronouncing on what the law ought to
be and supplanting Parliament.”
“Questions
that fell hitherto exclusively within the prerogative of elected Ministers have
yielded to judicial activism”
Two examples that she cites are the Brexit related judgments
relating to Article 50 and the Prorogation of Parliament*. These examples show
an alarming lack of understanding of the difference between the Legislature and
the Executive. The ‘Article 50 case’ was all about who had the power to invoke
Article 50 in relation to the UK’s exit from the EU – Parliament or the
Secretary of State. The Supreme Court held, by an 8 -3 majority that it was a
matter for Parliament. So this was the opposite of what the new Attorney General
is saying. The Courts affirmed the Supremacy of Parliament when it came to
withdrawing from treaties.
The same thing applies in relation to prorogation. In her
judgment, delivered on behalf of all 11 Supreme Court Judges, Lady Hale said – “It
prevented Parliament from carrying out its constitutional role for five out of
a possible eight weeks between the end of the summer recess and exit day on the
31st October.” In other words, the concern of the court was that the Prime
Minister had interfered with the business of Parliament.
These are not cases where the courts have overruled
Parliament. On the contrary, in both cases, the supremacy of Parliament was
affirmed in the light of attempts by Ministers to disregard it.
Her use of the words 'judicial activism' are misleading. Courts do not go looking for cases. Disputes are brought before the courts who then adjuducate. No Court in the land will pass judgnent unless somebdy asks them to. You would think that Senior Judges were going round the country hunting down cases to frustrate ministers.
It has to be remembered that these decisions came at a time
when there was a minority government. Ministers found their hands tied because
they could not get a majority for their actions. They attempted to by pass
Parliament and failed. The Prime Minister, with his huge majority, can now get
Parliament to agree to almost anything. This may cause some fear and dismay to
opponents, but the courts cannot and will
not interfere.
This is what makes the proposed attacks on the courts
disturbing. They are unnecessary so long as the government acts lawfully and
with the full support of Parliament. There is no power there for the courts to
grab even it that was its agenda. The December election result changed everything.
So why are these noises being made. It does feel a bit like revenge. The new
Attorney General was formerly Chair of the ERG. We all know the PM’s enthusiasm
for Brexit.
I do not believe for one minute that Suella Braverman does
not understand the difference between Parliament and Ministers. That separation
is first year Law Student material. This feels more like an appointment by the
PM to get one back on the judges who had the cheek to declare that his unlawful
prorogation was….unlawful. The Conservative Home blog reads a bit like a job application.
*Miller v Secretary of State for Exiting the European Union [2017]
UKSC 5
Miller v The Prime Minister [2019] UKSC 41
No comments:
Post a Comment