20th October 2021
There is a thing called the Judicial Power Project, which – as its name does not suggest – is not really about judicial power.
The project is about promoting executive power and is generally against any judicial check or balance of that executive power.
Sometimes it may affect to be defending ‘parliament’ or ‘the people’ against the judges – but it will complain of cases (such as the Miller cases) where the courts have been resolute in upholding the democratically elected parliament against the executive.
This executive power project had been fairly quiet in recent times – but it is back.
The Attorney General has made a speech – and it is not a flimsy speech – setting out a general critique of judicial power which could have been written by the executive power project themselves.
In one way, we should be grateful – for it is useful to have the arguments and contentions (and the case references on which those arguments and contentions rest) all in one accessible place.
And it is also good that it was done in a speech before a serious legal audience – and thereby ‘on the record’ – as opposed to briefed to the media or in an interview with a political reporter.
One does not have to be a great fan of the current Attorney General to admit that this was the right way to set out this general critique.
But.
The speech is not compelling – and this blog will in a few days set out a reasoned response to the speech.
It is, however, my tribute to the speech that it cannot be dismissed within a few minutes of reading it by a scathing blogpost.
The scathing post on this blog will have to take a bit longer.
In the meantime: here is a YouTube video Professor Mark Elliot, one of the leading experts in this area:
Response to the Attorney-General’s Public Law Project keynote speech https://t.co/IBkdOPl6O1 https://t.co/6rBy843GyK
— Mark Elliott (@ProfMarkElliott) October 20, 2021
And this is his thread:
Following @DominicRaab's extraordinary interview at the weekend (on which see https://t.co/8Wu0P9AtXi), I see the Attorney-General, @SuellaBraverman, has now joined the debate. (1)
— Mark Elliott (@ProfMarkElliott) October 20, 2021
At least this speech means there is now the possibility of a proper political and policy discussion – or even a debate – about this general issue.
I will put up my post on the speech in a day or so.
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I follow this blog for the considered thought, an underrated commodity in the current climate.
Thank you David. The reference to the AG’s favourite author in the opening paragraph was strange.
Irony? Unlikely given previous form; so I can only imagine she just never really understood George Orwell.
Looking forward to your critique.
I wonder how much Orwell she has read, but anyway here is the original. https://www.orwell.ru/library/essays/lion/english/e_eye
“It needs some very great disaster, such as prolonged subjugation by a foreign enemy, to destroy a national culture. The Stock Exchange will be pulled down, the horse plough will give way to the tractor, the country houses will be turned into children’s holiday camps, the Eton and Harrow match will be forgotten, but England will still be England, an everlasting animal stretching into the future and the past, and, like all living things, having the power to change out of recognition and yet remain the same.”
He wrote “England”, note; not “the United Kingdom”, as the esteemed Attorney General glossed it.
But perhaps it would be more instructive to read Part II:
“And yet the gentleness of English civilization is mixed up with barbarities and anachronisms. … They are part of ‘the law’, which is assumed to be unalterable.
Here one comes upon an all-important English trait: the respect for constitutionalism and legality, the belief in ‘the law’ as something above the State and above the individual, something which is cruel and stupid, of course, but at any rate incorruptible.
It is not that anyone imagines the law to be just. Everyone knows that there is one law for the rich and another for the poor. … Everyone believes in his heart that the law can be, ought to be, and, on the whole, will be impartially administered. …
… In England such concepts as justice, liberty and objective truth are still believed in. They may be illusions, but they are very powerful illusions. … The English electoral system, for instance, is an all but open fraud.”
’twas ever thus.
“He wrote “England”, note; not “the United Kingdom”, as the esteemed Attorney General glossed it.”
Ah yes, the unionist Three Card Monte. ‘I said England.’ ‘No you didn’t, you said United Kingdom.’ ‘OK then, UK… but wait a minute, you’re not including Northern Ireland.’ ‘Well, when we say UK, sometimes we mean Great Britain.’ ‘But actually you’re just referring to England…’ ‘As I said, United Kingdom…’
Now, when I hear politicians talk about the ‘UK’ or ‘Britain’ I just mentally scratch it out and think, ‘Greater England’. Which is not how it should be, but, increasingly, how it is.
I look forward to your observations on the Attorney-General’s speech. I enjoyed watching Professor Elliott’s analysis.
I wasn’t familiar with the Policy Exchange or its Judicial Power Project. I was amused to see that it modestly avers itself to be the UK’s leading think tank.
A perusal of the various contributions (not just those relating to the Judicial Power Project) leaves one in little doubt about its politics. And as such I find it unsurprising that the Attorney-General cites it with approval.
There are, of course, a range of views about the Supreme Court decision on the Miller 2 case. In the world of academic law that’s almost inevitable. The danger is that the Attorney-General will select the argument which suits the purpose of the Executive. And that dual purpose is clearly to rid the Executive of the inconvenient supervision by the Courts and to sideline Parliament by getting the Conservative majority to simply vote through the changes. Raab’s incoherent offering at the weekend is part of the same process.
Orwell’s ‘everlasting animal’ is England, not the United Kingdom; the AG’s identification of the two is, dare I say, a political judgment.
Like others responding, I look forward to your commentary. Elliott’s 11 minute (blog?/vlog?) is great value. Any plans for more of your FT ones? Possibly wider ranging subjects – climate change and the obsession with targets and pledges, Grenfell and the irresponsibility of the construction industry and professions? Your ability to get complex subjects into plain English is much appreciated.
Curious wording from Ms Braverman. Perhaps she is telling us she understands the slippery nature of the system she represents or perhaps she is telling us that this most flexible system can do anything it likes.
She follows on from from Sir Cox who got the chop – and a gong – she can still see the blood on the block and clearly knows which side her bread is buttered. Then she is also besties with Mr Raab who wants a freer hand to mess with our laws. Suella will surely help him out but is she just a teensey bit conflicted? We shall see.
Plainly Mr Raab does not want those meddling foreigners messing with any of that fancy ‘duty of care’ stuff that burdens the NHS. He wants a free hand to be as careless as he pleases. Then all that troublesome investigation of past military doings. A can of worms that once opened might carry a stench upwards and upwards even unto his own back door.
Let us hope Mr Raab and Ms Braverman learn a little wisdom before doing too much harm and remember that bit about power corrupts.
We are living in very dangerous times and this government is hell bent on retaining power and squashing the means of scrutiny and accountability.
Somehow I suspect that the reason the AG’s speech was given to a serious legal audience and contains detailed (if specious) arguments is that its real purpose is to draw out the legal establishment’s substantive counter-arguments, so that they can be analysed and dismantled more effectively later. Commentators beware.
As a non-lawyer, I was struck by the false sincerity – praising the English legal system and principle of Parliamentary Sovereignty while seeking to undermine them; a lawyer-politician warning lawyers about stepping into the political space; and the deceit of proclaiming that the
taxpayer frequently ends up footing the bill for crowd-funded judicial review cases, when this government has appeared to escalate those costs quite deliberately.