The last decade or so has demonstrated an increased appetite for political litigation, “and, more worryingly, an appetite for putting judges in an invidious position”, by asking them to decide essentially political matters on applications for judicial review, the Attorney General has claimed.
In a speech to Public Law Project’s annual conference, Suella Braverman said: “Given the unwritten nature of our constitution, there will always be disputes as to the proper role of the Courts in interpreting Parliament’s legislative supremacy, but recent years have tested our shared understanding in unprecedented ways.”
She suggested that the cases of Adams, the two Miller cases, Evans / UNISON and Privacy International, “to name but a few”, had strained the principle of Parliamentary sovereignty and introduced uncertainty into the constitutional balance between Parliament, the Government, and the Courts. [click on the link to the speech for the case citations]
Braverman said: “I accept that there are debates as to the proper scope of Parliamentary Sovereignty, and how and when the Courts should intervene. However, it is crucially 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.
“Because what we have seen is a huge increase in political litigation, that is to say, litigation seeking to use the court system, and judicial review, to achieve political ends.”
The Attorney General cited, as an example, the attempted judicial review of former Prime Minister Theresa May’s triggering of Article 50 in the case of Wilson & Others v Prime Minister.
“In that case, judicial review was refused at the permission stage, because it was on the basis of both delay and want of merit, with a costs order against the applicants of over £17,000. The court commented ‘that the applicants were inappropriately pursuing what was effectively a political campaign through the courts’ - and a 48-page skeleton was dismissed as ‘particularly weak’. Of course, the government has to spend time and money responding to such challenges – and often the full economic cost of doing so is never recoverable.”
Braverman suggested that the Government was successful in nearly 65% of the judicial reviews against it, adding that it was “vital that judicial review does not become the vehicle of choice for failed political campaigners”.
Referenda, elections and political fora are the appropriate settings for such arguments, she added.
She said: “To paraphrase Clausewitz, litigation must not be the continuation of politics by other means. The taxpayer frequently ends up footing the bill, especially now that campaigning organisations use crowd-funded litigation to achieve political aims. To acquiesce in the face of such activity undermines the Rule of Law, and creates endless uncertainty as to what the law is.”
The Attorney General argued that in those circumstances it was properly open to Parliament to respond to that trend, through reforms to judicial review.
She highlighted the Judicial Review and Courts Bill, which received its first reading in July 2021, saying that it was instructive how the Bill had been received. “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.”
The Attorney General continued: “To suggest that Parliament might intervene to overturn jurisprudence that it considers to be wrongly decided is not to suggest that the Courts should not be independent. To the contrary, an independent, apolitical, judiciary is crucial to upholding the Rule of Law. But in our system, the framework that those judges should apply is a matter apposite for Parliamentary scrutiny.
“In a similar vein, I will always support lawyers who take on difficult cases, and it is of crucial importance that they are free to do so. It has to be right in a free society that everyone should be able to seek legal advice to understand their rights and put their case to one of those independent judges.”
Braverman said that recent criticism of Dinah Rose QC by students at the University of Oxford for acting, “entirely appropriately”, for a sovereign government was completely wrong. “But, in other circumstances, when lawyers cloak themselves in a political cause, it is difficult to take them seriously when they complain about criticism. While abuse or intimidation has no place in our society, as I know better than many, if you step into the political arena, your political motivations and beliefs become fair game for criticism.”
The Attorney General concluded: “It is my view that the last decade or so has demonstrated an increased appetite for political litigation, and, more worryingly, an appetite for putting judges in an invidious position, by asking them to decide essentially political matters on applications for judicial review.
“Whether or not there is indeed a new direction of travel – or a return to a more conventional approach - it is important that we recast the mould. The ramifications of not doing so are profound. We should not dismiss them lightly. The legitimacy and reputation of our judiciary, which is inextricably linked to its political neutrality, is at stake. The authority of the judiciary must never again be pitched against the authority of the people. The confidence upon which our judiciary depend for their authority will be diminished. The rule of law itself will be weakened.”
She added: “To conclude, if we keep asking judges to answer inherently political questions, we are ignoring the single most important decision maker in our system: the British people.”