Suella Braverman is a former Brexit Minister and is MP for Fareham.
Restoring sovereignty to Parliament after Brexit is one of the greatest prizes that awaits us. 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. For too long, the Diceyan notion of parliamentary supremacy has come under threat. The political has been captured by the legal. Decisions of an executive, legislative and democratic nature have been assumed by our courts. Prorogation and the triggering of Article 50 were merely the latest examples of a chronic and steady encroachment by the judges.
For in reality, 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.
Brexit has served as a flashpoint of the shrinkage of politics and the ascent of law. However, as Jonathan Sumption, a former Supreme Court Judge, has said, the ‘empire of law’ has been expanding since the 19th century, gradually governing every aspect of life.
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. Judicial review has exploded since the 1960s so that even the most intricate relations between the state and individual can be questioned by judges. Full disclosure: I was a barrister specialising in judicial review prior to becoming an MP and can testify to the work on offer for hard-working, jobbing lawyers.
The catalyst for this proliferation was the Human Rights Act, which came into force in 2000. Whilst noble in its intentions, the concept of ‘fundamental’ human rights has been stretched beyond recognition. Of course, there exist inalienable, indisputable rights and codifying them is no bad thing (although, starting with Magna Carta, the English had done much of this long before Tony Blair came along).
However, despite aspiring to operate as a treatise on immutable rights going to the heart of our humanity, the HRA (and the prolific rights-industry which it spawned) now covers complaints about noise abatement, planning rules, employment and social security and non-payment of rent. Strained interpretations of the Article 8 Right to Private and Family Life have meant that inherently political decisions to do with immigration and extradition have been overturned by the courts.
Now I am not lambasting the judiciary and nor is this a diatribe against human rights. What I am arguing is that the delicate relationship between law and politics is off-balance. 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. Such political disputes can only be resolved through a democratic, consultative process so that public confidence is sustained.
The law, blunt instrument that it is, cannot be the crucible for political questions upon which divergent views exist within our society. Whether it is political matters like Brexit or ethical questions like assisted dying, only Parliament can fully test the whole panoply of views, nuances and interests. Messy, full of contradictions and anomalies, slow and frustrating- our Parliament remains the only source of decisions which have a legitimacy borne out of commanding a majority vote in the country.
I am pleased that that the Government has promised to update the Human Rights Act to restore the proper balance between the rights of individuals, national security and effective government and to set up a Constitution, Democracy and Rights Commission to ensure that the boundaries of judicial review are appropriately drawn.
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.