What the cabinet reshuffle tells us about Tory constitutional reform plans

In my last post, I promised to keep LabourList readers updated on the Tory plans for constitutional reform. While not even the scope of the ‘Constitution, Democracy and Rights Commission’ has yet been established, in two recent announcements the mists have at least started to clear on the direction of travel.

As head of the cabinet office, Michael Gove has been tasked with establishing the commission and its terms of reference. Nothing in Gove’s year as Lord Chancellor would suggest that he had any concerns at that time about judicial overreach nor give any clue as to what his own agenda might be now. That said, he is undeniably one of the big beasts of the cabinet and, for now, fiercely loyal to the Prime Minister.

According to Financial Times sources inside government, the rationale for his appointment is simple: “Dom [Cummings] wants to get the judges sorted and he’s naturally asked Michael to sort it out. He is trusted to do it.” That suggests that, far from establishing this commission simply to kick a difficult question into the political long grass, Cummings means business.

In the appointment of Suella Braverman as Attorney General, there are clear parallels with the replacement of Sajid Javid with Rushi Sunak as Chancellor. Evidently, neither Boris Johnson nor Cummings is comfortable with independent thinkers in the cabinet, and in Braverman they would appear to have identified a suitably pliant vehicle for their assault on the judiciary.

In stark contrast with her predecessor, Geoffrey Cox, and indeed with the favourite to replace him – Lucy Frazer QC – Braverman practised for only a few short years at the Bar before becoming an MP. She reached only the lowest rung on the ladder of government work and would be an unlikely candidate, on the face of it, to offer informed and fearlessly independent legal advice to this administration as it seeks to reshape the constitution.

Neither would that appear to be her only virtue from Johnson’s perspective. In an article for ConservativeHome published shortly before her appointment, Braverman revealed herself to be as enthusiastic as anyone to shackle the power and independence of the judiciary. A keen Brexiteer and former chair of the European Reform Group, she wrote the following:

“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… 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… 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.”

I would be surprised if there were a single reader of LabourList who could not spot the fundamental flaw in Braverman’s analysis. The rulings of the Supreme Court in both the prorogation and Article 50 cases actually reiterated the sovereignty of parliament in the face of successive attempts by Tory administrations to usurp and emasculate it. It made Theresa May seek parliamentary approval to invoke Article 50 and it prevented Johnson from unlawfully proroguing, and thereby circumventing the authority of, parliament.

In other words, the judiciary has repeatedly stood up for parliament against the executive. And that is why the executive now seeks to neuter the judiciary. In conflating those two, entirely and crucially distinct, components of our constitution, either our new attorney general does not understand the legal analysis underpinning the two most important decisions in constitutional law in recent years or she knows what she is writing is wrong, as a matter of law, but does not care. I genuinely do not know which I find more concerning.

Nor does Braverman stop there. In the same article, she rails against judicial review and the Human Rights Act without pausing to offer any examples of where either has produced a result which is constitutionally objectionable. While that is, of course, a vice common to many polemicists of the right, it is alarming to find it shared by the chief law officer to the crown.

Of equal concern to those keen to defend the independence of the courts, and the sanctity of our constitution, is Braverman’s parting shot. It might as well have been authored by Cummings himself, parroting as it does his favourite catch phrase:

“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.”

This reveals how the process will be sold: as a re-run of Brexit. Taking back control, but this time from the ‘enemies of the people’ in the courts. The same casual disregard for the truth, disingenuously characterising the judiciary as subverting parliament rather than – as is the reality – its stoutest defender in the face of an overbearing and casually irresponsible executive.