A third front is set to open in the struggle between the elected and unelected. The first is between the Government and the civil service – which boiled over this weekend in vicious briefing and counter-briefing between Priti Patel and civil servants over small boats.
The second is between the Government and officialdom more widely – or, if you prefer, between the Government and “the Blob”, as Paul Dacre called it last week when he withdrew his application to chair Ofcom. See also the push by Jonathan Evans, the Chair of the Committee on Standards in Public Life, for more powers for the Commissioner for Public Appointments.
The third is one over which there has been all quiet recently on the western front – namely, the battle between the Government (and government more broadly) and the courts. Its high noon was the Brexit prorogation judgement. Since the last election, there has been an uneasy ceasefire. This may soon change.
To understand why, we need to think our way back to September, and the last Ministerial reshuffle – in which Robert Buckland found himself the only senior Minister not languishing near the bottom of this site’s Cabinet League Table to be dismissed. (He was eighth from top the month before he was sacked.)
The former Lord Chancellor had been moving slowly towards judicial reform. “Buckland gears up for a stealth raid on judicial power”, I reported in March, reporting on his wish “to examine the role of the Lord Chancellor itself”, perhaps with a view to restoring the post as it existed prior to the Blair reforms.
Buckland was back in July for a second bite of the cherry, having earlier warned “the academy” (as his audience of judges and academics is sometimes called), in his understated way, that “the core idea of the nightmare – that judges are placed into the position of legislators or political decision makers – is not unimaginable”.
This time round, he said that he wanted to restore “the very conventional thinking that Parliament makes laws that give power to the executive and are checked by the judiciary”, and I was told that were four gradients in the then Lord Chancellor’s thinking.
First, he was encouraging judges to look more closely at the acts of Parliament on which they draw. That might mean, for example, studying Hansard more closely to ascertain the intentions of MPs and peers. Second, the Lord Chancellor was seeking to change culture through persuasion.
The third level of response would be by means of appointments. Finally, there is Government reaction to bad decisions, and legislation which seeks to address problems. See the commitment in the Queen’s Speech to a Judicial Review Bill which will “restore the balance of power between the executive, legislature and the courts.”
I wrote that “Buckland is determined to act on the recommendations of the independent panel set up to examine Judicial Review, which concluded that the asylum and immigration tribunal has been abused”. The Judicial Review Bill is now duly making its way through Parliament.
The independent panel chaired by Lord Faulks, otherwise known as the Independent Review of Administrative Law, recommended the abolition of the so-called Cart judicial reviews. The Bill will enact that recommendation. It also goes further and makes provision about prospective-only judicial remedies.
At any rate, Buckland seems to have been going too stealthily – too slowly – for the liking of Boris Johnson and his top team. He was replaced at Justice by Dominic Raab, whose appointment was greeted with dismay by a slice of the academy.
For Raab has a long history of antagonism not to human rights themselves, but to the judicial culture that has grown up around them – outlined in his The Assault on Liberty: What Went Wrong with Rights, published as long ago as 2009, during the Labour years in Government.
One side of his coin was a paean to civil liberties. “Under the false pretext of protecting the public, New Labour has pawned off our fundamental freedoms, turning Britain into a surveillance state which now boasts the largest number of CCTV cameras in the world,” he said.
But on the other side of the coin was a warning about judicial power. “A myriad of novel human rights have been conjured up in court rooms, far from the control of elected law-makers, fuelling a growing compensation culture and undermining social responsibility.”
At the Conservative Party Conference last month, the new Justice Secretary returned to the theme, promising new legislation to ensure that the Supreme Court has the final say over the European Court of Human Rights. Raab may also revive that Cameron-era project, a British Bill of Rights.
As so often when the intentions of Downing Street aren’t evident, the key to them may be hiding in plain sight – indeed, on ConservativeHome itself, in the form of an article at the end of last month by Suella Braverman, the Attorney-General, now returned from maternity leave.
“The cases of Adams, the two Miller cases, Evans/UNISON and Privacy International (to name but a few) have strained the principle of Parliamentary sovereignty and introduced uncertainty into the constitutional balance between Parliament, the Government, and the Courts,” she wrote.
Those examples range across a mass of issues. For example, the Adams case refers to the Supreme Court’s decision to declare a custody order relating to Gerry Adams, and made under anti-terror legislation, invalid because it was made by a Minister of State – and had not been considered personally by the Secretary of State himself.
The Miller cases take us back to the Supreme Court’s prorogation decision, the triggering of Article 50 – and the rights or otherwise of the Executive. “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,” Braverman wrote.
“Indeed, several academics have suggested the Bill could go further [my italics] – the most consistent contributions on this front have been from Policy Exchange’s Judicial Power Project, which have put forward several papers on this topic, sparking constructive debate.”
What might Raab seek to do, either through amendments to the Bill, or elsewhere at a later date, perhaps through legislation in the next Queen’s Speech? Prospective answers were floated during the Buckland era. Some of these concern the Supreme Court, which has been quieter since Lady Hale left it.
One solution, already mooted within government, would be to change the name of the court, cut the number of permanent judges and bring in others with specialist knowledge to hear individual cases. If ideas from the Policy Exchange project are in the Government’s in-tray, then here is one.
Another would be – as its the project’s head, Richard Ekins, has written on this site – to “restructure how and by whom final appellate jurisdiction is exercised”. Such an approach would be consistent with gradually reviving the Law Lords, perhaps initially through panels of retired judges who are now peers. Indeed, Buckland made the point that Parliament itself is the highest court in the land by referencing it as “the highest court of appeal”.
With the new Justice Secretary in place, and the Attorney-General pitching in, the question that remains is whether our volatile Prime Minister will go further than Lord Faulks’ review was prepared to travel – which his own recent reshuffle indicated is indeed the case.