The Economist USA - 22.02.2020

56 The EconomistFebruary 22nd 2020

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nglish judgesare used to obscurity.

Unlike their American counterparts,

even the most senior can count on being

recognised only in the warren of streets be-

tween High Holborn and the Thames that

comprise London’s legal quarter. Their

fondness for Latin does not help.

That changed last year when the Su-

preme Court ruled that Boris Johnson’s de-

cision to suspend Parliament—proroga-

tion, in the jargon—for five weeks was

unlawful. Brenda Hale, the court’s then

president, delivered the judgment live on

television. Soon afterwards, a children’s

book about “Judge Brenda” was published,

declaring her “equal to everything”. The

Guardian pronounced the spider brooch

she wore to read the judgment the year’s

“most potent accessory”.

The government is less taken with the

court’s new-found fame. Mr Johnson criti-

cised the prorogation ruling, despite ac-

cepting its legitimacy. Now that his Con-

servative Party has been re-elected with a

large majority, he has the chance to act. He

promises to establish a commission on the

constitution, democracy and rights to re-

view the separation of powers within

months. Others in government prefer

earthier phrases, reportedly talking of the

need to “get the judges sorted”. You do not

have to be a “superforecaster” of the sort

championed by Dominic Cummings, the

prime minister’s strategic adviser, to see

trouble ahead.

Mr Johnson’s decision on February 13th

to appoint Suella Braverman as attorney-

general raised expectations that a battle is

brewing. Her predecessor, Geoffrey Cox,

shared the prime minister’s concerns

about the judgment but attempted to dam-

pen speculation about the commission’s

scope, insisting the government would not

“rush headlong into impetuous reform”.

Ms Braverman, by contrast, has fanned the

flames. She wrote last month that judges

have made a “chronic and steady encroach-

ment” on political turf. Invoking the Brexi-

teers’ favourite slogan, she urged Parlia-

ment to “take back control”.

What that means in practice is unclear.

The commission’s terms of reference have

yet to be published, but the judges’ critics

are keen for it to consider pruning judicial

review, the process for challenging the le-

gality of executive actions, beefing up po-

litical oversight of judicial appointments

and perhaps even whether the country’s

most senior appeal judges ought to sit in

the House of Lords, as they did until 2009,

rather than in a separate Supreme Court.

Nor does the commission have a chairman.

One government cheerleader quipped that

Lady Hale, now retired from the court,

“shouldn’t wait by the phone”.

The government’s disdain for recent

judgments has received the most publicity.

Ms Braverman takes aim at the Supreme

Court’s ruling, in 2017, that the government

could not trigger Article 50, the mecha-

nism by which it left the European Union,

without a parliamentary vote. But its beef is

not constrained to a handful of rulings, nor

to the Supreme Court. Mr Johnson’s mani-

festo mooted changes to judicial review so

that it is “not abused to conduct politics by

another means”. Some Tories have long ar-

gued that interest groups have hijacked ju-

dicial review and that judges are straying

Constitutional reform

Judging the judges

The government is determined to curb the judiciary. That will prove tricky

Britain

57 Brexit and the Elgin marbles

58 Bagehot: The imperial prime minister

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