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The Conservative Government, the Press and the Judiciary, Unfinished Business? – Julian Petley and Dimitrios Giannoulopoulos

On 27 January, Suella Braverman, a former chair of the European Research Group, a junior minister at the former Department for Exiting the EU and an MP with a consistent record on voting against laws to promote human rights, wrote an article for the Conservative Home website in which she argued that:

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.

On the grounds that “traditionally, Parliament made the law and judges applied it”, Braverman complained that “today, our courts exercise a form of political power … Judicial review has exploded since the 1960s so that even the most intricate relations between the state and individual can be questioned by judges”. Entirely predictably, the culprit for this “encroachment” is identified as the Human Rights Act and the “prolific human rights industry which it has spawned”, by means of which “the concept of ‘fundamental’ human rights has been stretched beyond recognition”. She concluded:

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.

This sounded suspiciously like a job application, and lo and behold, on 13 February, Suella Braverman was appointed as the new Attorney General of England and Wales. As Adam Wagner argues, her appointment represents “the opening salvo” from the illiberal, anti-Human Rights ideologues in the Conservative Party and signals all too clearly  the government’s future direction in this area.

The newly appointed Attorney General’s narrative moves at a dizzying speed, from the point about regaining sovereignty from the EU to that of reclaiming power from the courts, passing through a destructive exercise of dismantling protections central to the Human Rights Act. But although some may have been surprised at the rapidity and ferocity of this attack, others have predicted it.

For example, Conor Gearty, writing in 2016, shortly after the EU Referendum (On Fantasy Island: Britain, Europe and Human Rights) warned with very considerable prescience that: “Now that the larger European entanglement has been successfully seen off (with Brexit), the time has come for finishing the unfinished business of human rights destruction”. For the Conservative Party, the Human Rights Act and the European Convention on Human Rights   have long been examples of what Gearty calls “bad Europe”, and Braverman’s appointment demonstrates their determination to transform the former, potentially beyond recognition, and substantially to alter its relationship with the latter.

It should be added that this commitment to “update” the Human Rights Act cannot be taken at face value. As one of us has previously written, the government’s position on the Act has mutated from direct political aggression (with the pledge to repeal it, in the Conservative Party’s 2015 election manifesto) to a strategy of creating ambiguity and chipping away at the its democratic legitimacy. Thus its 2017 manifesto contained the more nuanced, commitment, to stay, temporarily, in the Convention until Brexit was concluded, whilst its most recent manifesto promised to update the Act. Thus the Conservatives’  threats  to the Human Rights Act were always lurking in the Brexit waters.

The European Court of Human Rights has endlessly been the subject of frequently ill-informed criticism from Conservative politicians and newspapers alike. As Gearty pointed out, the underpinning narrative was that the Strasbourg court was  “exceeding its remit, pushing the UK too far, forcing its continental law on us, and so on”, even though, in reality, “the proportion of cases in which the UK actually lost was remarkably low, not much than 1 per cent”.  The themes and ideas underpinning this narrative  are now being reproduced, virtually word for word in Braverman’s and her party’s criticisms of the judiciary and human rights.

The new Attorney General’s “wish list” for uncontested executive power, free from the checks and balances that have been so long taken for granted in western democracies, has strong echoes of a simplistic, seductive and therefore extremely dangerous, ultra-populist narrative. This puts the executive at the centre, “freed” from the mechanisms of democratic accountability that the technocrats, spin-doctors and control freaks in No.10 clearly see as anachronistic, and leaving the other institutions normally included in the separation of powers characteristic of democratic societies – and us, individual citizens, especially if part of a minority – in the outer sphere, weakened, vulnerable, unable to hold government to account.

If anything proves that the government has declared war on the independence of the judiciary and on human rights, it is surely the appointment of an attorney general who is given to ill-conceived attacks on the very concept of judicial independence and is clearly opposed to both the Human Rights Act and the European Convention on Human Rights. But in order to understand how we have arrived at this truly remarkable situation, it is useful to backtrack to the government’s entanglement with the courts over Article 50, and the hostility to the judges shown by the Mail, Express, Telegraph and Sun during this process.

As is now well-known, in the wake of the November 2016 High Court judgement on Article 50, the Mail infamously branded the judges concerned “enemies of the people”. But less noted is the fact it, along with the Telegraph, also frequently turned its attention to the make-up of the judiciary and the manner in which its upper echelons were appointed.

Thus, for example, on 7 November, Andrew Pierce complained in the Mail that “Britain’s selection of Supreme Court justices is far more secretive than the process in the US”, and that “no public scrutiny is required”. The same day an editorial argued that the Supreme Court is a “virtual closed shop” with the judges “largely selected by their peers”. It also noted that “calls for public hearings to gauge candidates’ views and any political leanings – as happens in the US – have been resisted”, and asked rhetorically: “Isn’t it time for a change?”

The Mail returned to the subject of the judiciary on 3 December in a lengthy editorial,  most of which was a defence of its “Enemies of the People” rant.  However, it also attacked with characteristic inaccuracy what it called “human rights laws” because, in its view, these “are so broadly phrased that they allow judges considerable leeway to interpret them, often at the expense of the government of the day”. The result is, according to the Mail, that judges have become not only “judicial activists” but have also “progressively assumed the role of the overtly political Supreme Court in Washington”. However, the US court’s judges “are appointed only after intensive public scrutiny of their personal and political views”, whereas in Britain the Supreme Court judges “are selected by a cosy five-person special commission, out of public sight”. The same point was made yet again two days later in an article laboriously headlined “The Brexit Judges Selected by Quangocrats: How the Supreme Court Justices Who Will Decide the Article 50 Case Today are Chosen in Secret – and How the US Puts us to Sham”’.

Three years later, such arguments were to find an uncanny echo in the Conservative election manifesto, which was published on 24 November 2019. And whilst the argument that “it’s all got up by the press” should generally be avoided, it would equally be most unwise to under-estimate the importance of the intimate and mutually reinforcing  links between Conservative politicians and Conservative newspapers. Anyone inclined to do so should read the highly authoritative articles by the former Telegraph political editor and Mail political columnist, Peter Oborne, on this subject.

The section of the manifesto entitled “Protect Our Democracy” states that: “After Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords”. More specifically, it promises that:

We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays. In our first year we will set up a Constitution, Democracy & Rights Commission that will examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates.

Vague though much of this is, it is impossible to miss the references to the subjects that so enraged the Mail – in particular the “abuse” of judicial review “to conduct politics by another means or to create needless delays”, and the “updating” of the Human Rights Act, for so long such a bugbear of significant sections of the Tory press and party.

The briefing notes accompanying the Queen’s Speech on 19 December return to the subject of the Constitution, Democracy and Rights Commission whose function is described variously as being “to develop proposals to restore trust in how our democracy operates” and “to consider the relationship between Government, Parliament and the courts”, “to explore whether the checks and balances in our constitution are working for everyone” and to “examine the broader aspects of the constitution in depth and develop proposals to restore trust in our institutions and in how our democracy operates”.

Again, the language is vague, but, in the context of the events of the previous three years, and the manner in which certain papers reported them, this raises significant fears about the independence of the judiciary under Johnson’s premiership. Unsurprisingly, then, Simon Davis, president of the Law Society of England and Wales, warned those drawing up the scope of the new commission to safeguard the “delicate balance that underpins our unwritten constitution”. He continued:

An independent legal profession and a government accountable to the people are fundamental elements of a nation rooted in the rule of law. We must preserve and protect these principles at all costs. Our court system and our judges are there so the law laid down by parliament can be interpreted. In a mature democracy, it is crucial that the independence of this process is maintained.

Many would actually agree that greater transparency about how Supreme Court judges, and indeed judges in general, are chosen would be most welcome. However, the problem with the American system so favoured by the Mail is that it involves a highly politicised judicial appointments process. If the appointments process in the UK did become politicised in this fashion, it would be absolutely inevitable that the newspapers considered in this article would become deeply enmeshed in it. Indeed, this is precisely what they have long desired to do. Of course, in traditional democratic theory, newspapers act as members of the Fourth Estate, scrutinising every aspect of the democratic process – including the workings of the judicial system – in order to safeguard the public interest. The fundamental problem here, however, is that most English national newspapers are far too politically partisan, far too deeply embroiled in the political system over which, according to Fourth Estate principles, they are supposed to act as watchdogs, and far too committed to the political and ideological interests of those who own and run them, to count as members of the Fourth Estate as it is generally understood. Indeed, to use Stanley Baldwin’s terms, these are not “newspapers in the ordinary sense” but “engines of propaganda”, and it is extremely disturbing that by far the best-informed book on the real, as opposed to the idealised, relationship between the press and the political system in the UK should be entitled Democracy under Attack: How the Media Distort Policy and Politics. Anybody wishing to grant yet more political power to papers such as these would be well advised to read it.

Julian Petley is Professor of  Journalism in the College of Business, Arts and Social Sciences, Brunel University London.  

Dimitrios Giannoulopoulos holds the Inaugural Chair in Law at Goldsmiths, University of London. 

1 Comment

  1. Christopher Whitmey

    Edmund Burke’s words come to mind, “When the leaders choose to make themselves bidders at an auction of popularity, their talents, in the construction of the state, will be of no service. They will become flatterers instead of legislators; the instruments, not the guides, of the people.”

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