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Judges Cannot Save Us from the No Deal Brexit Cliff Edge

Court reporter James Doleman’s analysis on the role of the courts in Boris Johnson’s Brexit saga.

Court reporter James Doleman’s analysis on the role of the courts in Boris Johnson’s Brexit saga.

The decision by the Scottish Court of Session not to allow a petition by a group of MPs to stop Boris Johnson’s prorogation of Parliament has led to a number of misleading headlines. Among these, was that of the Guardian which proclaimed: Prorogation is Lawful says Scottish Judge.

That is not what Lord Doherty ruled. But, what he did decide is both far more interesting and instructive.

The court was asked to stop the suspension of the UK legislature and rule that it was unlawful. Lord Doherty ruled: “[The] prorogation decision is a matter involving high policy and political judgement. This is political territory and decision-making which cannot be measured against legal standards, but only by political judgements… Parliament is the master of its own proceedings, rules and privileges and has exclusive control over its own affairs. The separation of powers entails that the courts will not interfere.”

Simply put, Lord Doherty found that this was not a decision on legality or illegality, it was instead the judicial equivalent of “nothing to do with us, guv”.

This is not the end. The Scottish appeal court will be ruling on the judgment on Wednesday and the Supreme Court later this month. However, the episode shows how reluctant the courts are to get involved in politics – and they have good reasons not to.

The judicial system is one of the three pillars of the British state, the others being the Government and Parliament. The Government and Parliament have material powers. The Government has the power of the state, the police and, ultimately, the armed forces at its disposal, while Parliament has the power to pass legislation and, more importantly, the power of the purse – only it can raise revenue through taxation.

What actual power does the judiciary have other than a consensus that its rulings should be respected? Like a referee in a football match, it is in charge, but only as long as the players agree. If all 22 of them decided they didn’t like his decisions and demanded another, that would be that.

In some ways, the media’s depiction of human rights law has given the impression that the judicial system reigns supreme, overturning Government decisions on a regular basis. Even if this was true, it is because an Act of Parliament – the Human Rights Act – incorporated the European Convention on Human Rights (which has nothing to do with the EU) into British law, and the Crown giving it Royal Assent. There is nothing to stop a parliamentary majority from passing the “Abolition of Human Rights Act” or even the “Supreme Court (Abolition) Bill”.

That is the conundrum facing the judiciary: without agreement that its decision should be respected, in a serious battle with the other two pillars of the state it will always lose.

There has been some talk about the Supreme Court imposing an injunction on a ‘no deal’ Brexit and Boris Johnson being arrested if he fails to comply with this. One small problem though: who will do the arresting? The police swear an oath to the Crown, not the courts, so does the Army. It’s a fantasy.

Given the paralysis in Parliament and the threat of ‘no deal’, it is understandable that people should be looking for a way out. A judge, swooping in like Batman and sorting it all out, has a clear appeal. But, in my view, it is simply not going to happen. The problem is political.

As Lord Doherty said in his judgment: “The accountability for them is to Parliament and the electorate,” not the courts. 

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