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Friday, 14 February 2020

Introducing our New Attorney General and some alarming misunderstandings

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

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