Judges have no right to stop me, declares PM

Eleven angry lawyers: Supreme Court “outraged by Boris Johnson’s behaviour”.

Should Britain’s highest court bring back Parliament? The most serious battle of constitutional powers for 100 years is playing out this week. The future of the country is at stake.

Parliament. The Prime Minister. The courts. The three pillars of the British nation. All answerable to the Queen, but all separate and independent of each other.

In normal times, the three great pillars stand steadily side-by-side. In turbulent times, they wobble a bit. Today, they seem to be actively trying to push each other over.

And it only takes one to go down for the roof to fall in.

Yesterday, the Prime Minister told the courts to get off his turf. He said judges had no jurisdiction over his decision to suspend Parliament and that they risked “entering the political arena”.

But to understand what is going on, we need to start at the beginning.

On 28 August, Johnson advised the Queen to suspend (or prorogue) Parliament until 14 October. The Queen made an order doing so.

The Supreme Court is now deciding if this was a lawful act. It is deciding two cases on appeal: one from England and one from Scotland.

The claimants in England said that Johnson undermined the principle of parliamentary sovereignty by suspending MPs in order to get round opposition to Brexit.

But the High Court said that there were no legal standards against which the court could judge the legitimacy of the suspension. So, Johnson could go ahead.

However, in Scotland, the highest civil court said the true purpose of the suspension was to prevent parliamentary scrutiny and, therefore, that it undermined the rule of law.

If the UK Supreme Court decides that the prorogation was lawful, then Parliament will not return until 14 October. If it decides that the prorogation was unlawful, MPs will return very soon.

These hearings may, one day, be seen as a turning point in British history.

They may mark the moment Britain stopped being a political democracy restrained by law and became instead a legal democracy tempered by politics.

Is our system based on the political decisions made by Parliament and the executive in which it places confidence? Or are there laws and arrangements that exist regardless of Parliament’s view?

An elective dictatorship?

Daniel Finkelstein, in today’s Times, sums up the view in favour of the courts. “The prospect of the tyranny of an elective dictatorship worries me and I like legal barriers against it. I am astonished at those Conservatives who can’t see the value in constitutional protections. Does the party really never imagine it will be out of office and facing a Labour government that might try to ignore the courts?”

Allison Pearson, in today’s Telegraph, sums up the view in favour of Johnson. “We have a very delicate separation of powers in this country. I reckon it’s totally wrong, not to mention dangerous, that our judiciary should be asked to decide what is and isn’t politically acceptable. That’s what we have elections for. It’s not the Supreme Court that needs to hold the Government to account. The ultimate judge of how Boris Johnson has conducted himself is the court of public opinion.”

You Decide

  1. Are top judges wise (or just very clever)?
  2. Should democracy be fought out in the courts or in the streets?

Activities

  1. Make your own protest poster! The words must say: “Defend Democracy”, but the design and the images can be anything you like.
  2. Using the article by Mathew Holehouse in the second of our Expert Links, design your own timeline of the events leading up to the Supreme Court hearings this week.

Some People Say...

“Bad laws are the worst form of tyranny.”

Edmund Burke (1729-1797), Anglo-Irish statesman and philosopher

What do you think?

Q & A

What do we know?
Brexit has devoured two British PMs and is chewing up a third. The two main political parties have been sent into meltdown, relations between the UK’s constituent countries strained, and the conventions of Parliament bent to breaking point. Over the road from Parliament's home in the Palace of Westminster, in the former Middlesex Guildhall, the third branch of government is being asked to pick up the pieces.
What do we not know?
Whether judges will end up with a greater role in public life. “We’re seeing the UK Supreme Court being asked novel questions, requiring them to grapple with matters that would previously have been resolved through politics and the political conventions of the constitution,” said James Grant, senior lecturer in law at Kings College London. “In that sense, the court is being asked to play a greater role in UK politics — a role which the justices may wish they didn’t have to fulfil.”

Word Watch

Jurisdiction
The official power to make legal decisions and judgements.
Prorogue
To suspend or discontinue a session of (a parliament or other legislative assembly) without dissolving it.
Supreme Court
The final court of appeal in the UK for civil cases, and for criminal cases from England, Wales and Northern Ireland. It hears cases of the greatest public or constitutional importance affecting the whole population.
Sovereignty
The authority of a state to govern itself or another state.

Subjects

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