ON Sunday, the Observer correctly predicted that the Supreme Court would rule against the PM and deem that his advice to prorogue Parliament for five days more than normal was illegal, because it was based on the motive to achieve Brexit and not to gain a Queen’s Speech for a new governmental programme. Needless to say, this looks like a political decision by the SC, not a straight legal one. Indeed part of the reason for the Observer’s prediction was that the President of the SC, Lady Hale, questioned the government’s barrister in hostile fashion and that the court began to question the government as to what it should do if it lost the case, seeking to guide the political process itself. Readers might be interested in an earlier SC case, basing Hale’s lone opinion on feminist law theory.
A wonderfully apt letter to the Daily Telegraph demonstrated the SC is trampling on democracy in behaving like this:
SIR – The decision to prorogue Parliament is a political one, as is its duration and timing.
In our democracy, abuse of the political process is moderated by voters at the next election. This is as it should be. Political performance is judged by the electorate, not the judiciary.
The Supreme Court requested assurances from our Government regarding its intentions following a possibly unfavourable verdict. How can this be right? Surely we are not at a point where a prime minister is obliged to promise to behave in order to win his case.
As David Starkey has put it, this is starting to look like a coup against the 17million plus voters who won the referendum, and the rule of lawyers not the rule of law, which as it stands is that the PM has the right to prorogue Parliament, and the courts have no right to question this right nor question the PM’s reason for prorogation, let alone bad motives, or reasons which judges might not like. John Major prorogued Parliament to avoid embarrassing discussion of Tory MPs’ expenses, for example. Now that the SC has gone through with this coup against the PM, then as Peter Edwards so rightly says in his letter, a General Election has to happen immediately since democracy itself it at stake and cannot be left to judges who are being ‘creative’ in expanding their jurisdiction over an elected PM’s policy. We note that Speaker Bercow has been very ‘creative’ and unlawful in ripping up the Erskine May rule book of Parliamentary procedure for purely political ends – curiously the very same ends that the SC favours. Why did the SC not adjudicate on the lawfulness of the Speaker’s behaviour while they were looking at a menu of Brexit-related issues?
It all stitches up very creatively, and very politically. A General Election is needed to decide if the UK wants a kind of group of Platonic Guardians, or indeed Iranian Ayotallahs, to decide what the elected government can and cannot do, especially with a massive plebiscite vote behind it. The SC could have reached only one conclusion once it decided that it was within its jurisdiction to play politics, to order a General Election.
Lady Hale and the SC insisted that they were not sitting because of Brexit. But Dominic Lawson has busted her claim with devastating accuracy in a Times article subheadlined ‘The Supreme Court is being used to block Brexit, not boost democracy’. His opening two paragraphs are worth quoting in full:
Last week’s hearing at the Supreme Court of Gina Miller’s case to reverse Boris Johnson’s proroguing of parliament was nothing to do with Brexit. Perish the thought. But lest anyone had been under such an absurd misapprehension, the president of the court, Baroness Hale, concluded the hearing with these words: ‘I must repeat that this case is not about when and on what terms the UK leaves the European Union . . . We are solely concerned with the lawfulness of the prime minister’s decision to advise Her Majesty to prorogue parliament.’
How odd, then, that the hearing had been listed on the Supreme Court’s own website under ‘Brexit-related judicial review cases’. When this was pointed out, the page on the court’s website was rapidly altered to conform retrospectively to Lady Hale’s obiter dictum: the hearing was suddenly no longer a ‘Brexit-related judicial review case’ but a ‘Prorogation-related judicial review case’.
So the veil was lifted by the SC’s own website: this is, as we all know, a case about Brexit, brought by a hugely wealthy detester of Brexit who said she felt sick at the news of the result. The SC has tainted itself and arrogated powers it was never meant to have, and only an election can reverse that constitutional change. An establishment stitch-up builds and builds against the referendum vote, the SC has joined itself to the corporate plutocrats, remainer MPs and rogue Speaker and House of Lords (which of course includes many judges and barristers), academia, the BBC and MSM. Who is to speak for the people whose vote is being destroyed by this massive power bloc, clearly working in conjunction with the EU to stop Brexit altogether? Lawson ends his article:
The hearing is in any case otiose, as Parliament passed a measure to block no-deal Brexit on October 31, ahead of prorogation. And even if the court were to order Johnson to ‘un-prorogue’ Parliament, such a rebuke would only add to the PM’s reputation among leave voters as the voice of the people against ‘the Establishment’. Like it or not, the Supreme Court is now hopelessly enmeshed in pure politics. That’s bad.
It is clear also that the PM should not resign: to do so would only be approving the SC’s right to expand its jurisdiction at its own self-generated behest, with no legitimation by the public for so drastic a power grab. The one thing I did not expect was a unanimous vote by the SC judges: a Blairite political bloc working to stop Brexit in alliance with the rogue Speaker and opposition parties refusing a General Election. Lawson is dead right: this is very bad indeed.