Following UK Prime minister Boris Johnson’s cabinet reshuffle on Thursday 13 February, Conservative Suella Braverman was appointed as the new Attorney General, the government’s senior legal officer. She has made clear that she wants to limit the powers of judges on the Supreme Court and change the Human Rights Act.
In a blogpost on 27 January, the keen Brexiteer wrote a searing attack on human rights litigation and the overuse of judicial review challenges. She said that parliament must seize back control not only from the European Union but also the courts.
“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.”
The potential legal changes
Boris Johnson is giving a clear signal with Ms Braverman’s appointment that his plan to establish a Constitution, Democracy and Rights Commission, which could potentially lead to fundamental changes for judicial review and the Human Rights Act, is going ahead.
Writing for Conservative Home, the new Attorney General 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”.
Before her appointment, Ms Braverman, the MP for Fareham since 2015, was leading a group of Conservative MPs who were pushing for judges on the Supreme Court to be reined in amid fears that they were creating new laws with their judgements.
She told the Sunday Express that recent decisions made by the Supreme Court were examples of “an increase in judicial activism which we have to stem” and warned the power of judges has “gone too far” and “beyond interpretation of the law”.
The recent rulings she is referring to are the judgements on prorogation of Parliament and the Gina Miller case on Article 50, and the “catalyst for this proliferation”, she said, has been the Human Rights Act, which came into force in 2000.
She said: “There has been a chronic and steady encroachment by judges into the political realm over the last 10 to 20 years stepped into the political realm.”
Controversial appointment
The Liberal Democrats labelled Ms Braverman “unfit to serve as Attorney General” and the party’s justice spokesperson Daisy Cooper said it is “the latest shocking step in Boris Johnson and Dominic Cummings’ assault on the rule of law”.
Braverman has also sparked controversy in legal circles. Simon Davis, President of the Law Society of England and Wales, told the Guardian:
“The role of the judges is to give effect to the will of parliament, and the role of judicial review is to support parliament, not to undermine it. The article 50 and prorogation supreme court judgments were good examples of judicial support for parliamentary democracy. An independent judiciary is fundamental to the rule of law and underpins the UK’s reputation for fairness and impartiality.”
Amanda Pinto QC, Chair of the Bar Council, said to the Guardian: “The independence of our judges is fundamental to ensuring the rule of law remains the foundation of our justice system. No one is above the law.”
“The Bar Council expects the government to uphold the rule of law in this country. Both the attorney general and the lord chancellor have important roles in guaranteeing those principles are upheld,” she continued.
In what was clearly a disapproving tweet, the Secret Barrister commented:
“An entirely fitting attorney general for a Boris Johnson government.”
Successive Conservative governments have long wanted to change or replace the Human Rights Act. When David Cameron won a small Conservative majority in 2015, the election manifesto promised to replace the Human Rights Act. Theresa May, as home secretary, was one of the most vociferous critics of the Human Rights Act and the European convention on Human Rights (ECHR), which she openly said the UK should leave.
The Conservatives’ 2019 manifesto pledged to “update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government”, and to prevent judicial review being “abused to conduct politics by other means”.