New attorney generalSuella Braverman has been appointed the government’s chief legal adviser just days after unleashing a broadside against “unelected, unaccountable” judges who she accused of encroaching on the powers of politicians and threatening the supremacy of parliament.
In a blogpost on 27 January, the keen Brexiteer said that parliament must seize back control not only from the European Union but also the courts.
As attorney, Ms Braverman will not have direct control over the legal system, though she will oversee the Crown Prosecution Service.
But her appointment signals a willingness by Boris Johnson to tread on judicial toes as he forces through potentially fundamental changes with the Constitution, Democracy and Rights Commission which he plans to establish.
The prime minister is thought still to be smarting from his humiliation at the hands of the Supreme Court when it ruled his suspension of parliament unlawful last September.
Ms Braverman said she was “pleased” at the plans for the Commission to “ensure that the boundaries of judicial review are appropriately drawn” as well an update of the Human Rights Act to “restore the proper balance between the rights of individuals, national security and effective government”.
Writing for the ConservativeHome website last month, Ms Braverman identified the ruling as one of a series of examples - alongside the judgement on the triggering of Brexit talks under Article 50 - of “chronic and steady encroachment by the judges” into political territory.
In both cases, judges overruled the executive in a way which allowed MPs greater scrutiny of ministerial plans for Brexit.
But Ms Braverman framed them as an infringement of the sovereignty of the Commons.
“Restoring sovereignty to Parliament after Brexit is one of the greatest prizes that awaits us,” she wrote. “But not just from the EU.
“As we start this new chapter of our democratic story, our Parliament must retrieve power ceded to another place – the courts.”
Ms Braverman said: “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.
“To empower our people we need to stop this disenfranchisement of parliament.
“Traditionally, parliament made the law and judges applied it. But today, our courts exercise a form of political power. Questions that fell hitherto exclusively within the prerogative of elected ministers have yielded to judicial activism: foreign policy, conduct of our armed forces abroad, application of international treaties and, of course, the decision to prorogue Parliament.”
The use of judicial reviews to check the authorities had “exploded” as a result of the passage of the Human Rights Act in 2000, which had stretched the concept of fundamental human rights “beyond recognition”, she said.
“I don’t challenge the quality of our judges, but I do question their trespass into inherently political terrain for which a legal answer is wholly insufficient,” wrote Ms Braverman, a barrister by training.
“Yes, courts should operate to curb abuse of power by government but if a small number of unelected, unaccountable judges continue to determine wider public policy, putting them at odds with elected decision-makers, our democracy cannot be said to be representative. Parliament’s legitimacy is unrivalled and the reason why we must take back control, not just from the EU, but from the judiciary.”
