Britain must abolish the Supreme Court or subject it to US-style hearings
The Government has been squaring up for a fight with the judiciary since what history may come to call the Prorogation Crisis of 2019; and the replacement of Geoffrey Cox by Suella Braverman as Attorney General in last week’s reshuffle seems certain to launch hostilities.
Weeks before her appointment Mrs Braverman said it was time for Parliament to get back “power ceded to the courts”, and that “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”. Were that not enough fighting talk, she continued: “Traditionally, Parliament made the law and judges applied it. But today, our courts exercise a form of political power.”
One has only to study the Prorogation Crisis to understand that Mrs Braverman has a point.
The Supreme Court’s decision that the prorogation of Parliament was a justiciable matter divided not just the country but the legal profession. To many, it seemed that the law had become yet another of our supposedly disinterested institutions – along with the Speakership of the House of Commons – made so overwrought by the democratic decision for Britain to leave the European Union that it would interpret the rules of the game not just to the limit, but possibly beyond it, to try to prevent that departure.
It is not fanciful to suggest that an element of public outrage at this legal interference with the elected government made a contribution to the result of the general election two months later. As such, it is inevitable that the Government should use its current strength to try to redress the balance towards the representatives of the people.
It is easy to see why the Supreme Court went to the lengths it did. The last Parliament sat mostly during the rule of a prime minister for whom deciding even what to have for breakfast threatened to occasion a nervous breakdown. The government over which she attempted to preside was the most ineffectual, dysfunctional and chaotic in living memory, and possibly since the 18th century. Lord Sumption, formerly of the Supreme Court, implied in his Reith Lectures last year that one reason for the courts taking more upon themselves was that the quality of government decisionmaking had become so poor. The Supreme Court, like nature, seems to abhor a vacuum, and duly and incrementally stepped in.
However, once the leadership changed last July, and the government started to act decisively to move the Brexit process along, the Supreme Court seemed not much to like that either.
The punishment of the government in forcing them to recall Parliament seemed to assert the rights of unelected judges over elected politicians. This, in turn, excited much speculation about the political leanings of the members of the court. A trawl through their biographies provided little evidence that any of them was likely to have voted to leave the EU; the pleasure one or two of them visibly took in the outcome of the court case seemed to confirm the matter.
England and Wales’s independent judiciary is not only prized, but is essential to a civilised democracy. But if it is going to act in a fashion that raises doubts about its independence, then steps must be taken to stop it. The judicial reforms of the Blair years that established the Supreme Court out of the old Judicial Committee of the House of Lords should be reversed. They were engaged largely to force Lord Irvine of Lairg off the Woolsack; a preposterous reason to alter one of the cornerstones of the constitution. Similarly, the Lord Chancellor should once more be a peer, sitting in the House of Lords, and part of the judiciary. Would the old House of Lords committee, with the Lord Chancellor and a member of the elected government part of it, have taken the decision the Supreme Court took last autumn? I doubt it.
If Mrs Braverman is not prepared to argue for such a reform – though it is hard to see why she should not – then the only alternative is to subject members of the Supreme Court to US-style hearings by politicians before their appointment. It would go against all precedent, but if it came about it would be something the judges had brought upon themselves.
The Supreme Court itself was a lamentable departure from tradition; but if it is determined to go against the interests of democracy, it may have to prepare itself for another one.