Suella Braverman is the Attorney General for England and Wales, Advocate General for Northern Ireland and MP for Fareham.
The story of our constitution is much like the story of the UK itself: ‘an everlasting animal stretching into the future and the past, and, like all living things, having the power to change out of recognition and yet remain the same’, to borrow a line from Orwell, one of my favourite authors.
Dicey refers to it as ‘the most flexible polity in existence’. But this flexibility should not obscure Parliamentary Sovereignty – ‘the bedrock of the British constitution’ (Lord Bingham in Jackson v Attorney General) since at least 1689. One reason for the long-term health of our constitutional arrangements is the admirable restraint shown by the Courts when it comes to matters of high political controversy, something which our Parliament, in conversation with the people, is uniquely capable of navigating.
However, the last decade or so has seen a huge increase in political litigation, or put another way, the use of litigation as a political tool by those who have lost the arguments. This trend puts judges in an invidious position as it asks them to decide essentially political matters on applications for judicial review.
The Government is forced to spend taxpayers’ money defending such challenges – often the full economic cost is never recoverable. The attempted judicial review of former Prime Minister Theresa May’s triggering of Article 50 in the case of Wilson v Prime Minister is a stark example, with a costs order against the applicants of over £17,000 and the claim being branded by the courts as ‘inappropriately pursuing what was effectively a political campaign through the courts’, dismissing a 48-page skeleton as ‘particularly weak’.
More fundamentally, the radical departure from orthodox constitutional norms severely threatens their delicate balance. That is why the Queen’s Speech in 2021 included a commitment to restoring “the balance of power between the executive, legislature and the courts” – an ambition with which I wholeheartedly agree.
As I explained in my keynote speech to Public Law Project’s annual conference on October 19, the cases of Adams, the two Miller cases, Evans/UNISON and Privacy International (to name but a few) have strained the principle of Parliamentary sovereignty and introduced uncertainty into the constitutional balance between Parliament, the Government, and the Courts.
We have also seen an increased readiness to import HRA-style proportionality into judicial review. Senior judges, including Sir Philip Sales (now Supreme Court judge) have rightly said this is an ‘illegitimate legislative act’, and is not something courts should countenance. Considering these evolutions, it is perfectly legitimate for our Government to decide that it is worthwhile and important to invite Parliament to legislate to overturn individual decisions and these wider trends.
Simply put, it is 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. Elections, referenda and political fora are the appropriate settings for such debate, not the courts. The electorate is the correct arbiter in such matters, not the judiciary.
The Judicial Review and Courts Bill received its first reading in July 2021. That Bill includes a number of reforms and there has been little, if any, suggestion that it is not Parliament’s right, or that Parliament is not empowered, to overturn decisions of the Supreme Court (for example that of the Cart judicial review jurisdiction).
The principle would thus appear to be broadly accepted. Indeed, several academics have suggested the Bill could go further – the most consistent contributions on this front have been from Policy Exchange’s Judicial Power Project, which have put forward several papers on this topic, sparking constructive debate.
Now that the Supreme Court has departed from traditional notions of what is justiciable and what is non-justiciable, in a future case it 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. The mould has been broken. The authority of the judiciary must never again be pitched against the authority of the people.
While the courts have a vital role to play in our constitution, it is Parliament that has ended up supreme for a reason. Lord Sumption reminded us of this in his Reith lecture: “It is the proper function of the courts to stop Government exceeding or abusing their legal powers.
Allowing judges to circumvent parliamentary legislation, or review the merits of policy decisions for which Ministers are answerable to Parliament, raises quite different issues. It confers vast discretionary powers on a body of people who are not constitutionally accountable for what they do. It also undermines the single biggest advantage of the political process, which is to accommodate the divergent interests and opinions of citizens. It is true, politicians do not always perform that function very well. But judges will never be able to perform it”.
Even if he is not so complimentary about politicians, I can’t help but agree with him! If we keep asking judges to answer political questions, we ignore the single most important decision maker in our system: the British people.