A chilling comment in the Sunday Times looks like an attempt to undermine the independence of our judiciary. As such, this is a serious attack on our democracy. Nobody, even the Prime Minister, is above the law.
A “Number 10” source is quoted as saying: “Remainiac lawyers now demand that Scottish judges take over the role of elected politicians and cancel Brexit. Hopefully judges will reflect deeply on the profound consequences for the judiciary if they are seen by the public to side with those trying to cancel the biggest democratic vote in our history.”
The lawsuit isn’t trying to cancel Brexit, merely to force Boris Johnson to obey the law. Downing Street’s response is akin to the Daily Mail’s notorious attempt to brand the Supreme Court “enemies of the people”, only worse in that this is coming directly from the government not a tabloid paper.
The source was not referring to the Supreme Court’s imminent judgment over whether Johnson’s suspension of Parliament was unlawful. Rather they were referring to the separate issue of whether he would obey a new law instructing him to ask the EU for extra time if, by October 19, he hasn’t got MPs to approve a Brexit deal.
The Prime Minister told the BBC last week: “We will obey the law but we will come out [of the EU]… on 31 October.” Unless he manages to strike a deal with the EU – which seems pretty unlikely – Johnson will struggle to square these two statements.
What if he then breaks the law? What if he is prepared to go to jail rather than send a letter to the EU asking for extra time? Wouldn’t we crash out of the EU?
Not necessarily. There are several possible defences against such dastardly tactics, one of which is for the courts to instruct somebody else to send the letter on Johnson’s behalf.
Special Scottish power
A lawsuit has already been initiated in the Court of Session, Scotland’s top court, to do precisely this. Joanna Cherry, the SNP MP, Jolyon Maugham, the lawyer, and Dale Vince, the environmentalist, are leading the charge. The first two are part of the same team that was behind the Scottish case which ruled that Johnson’s suspension of Parliament was unlawful – and which the Supreme Court will rule on tomorrow.
The Court of Sessions has been chosen because it possesses an unusual power, “nobile officium”, under which it can provide a legal remedy when none otherwise exists. Stephen Thomson, an academic who specialises in the topic, writes that this power can be used in exceptional circumstances, where the matter is urgent and no other remedy is available to the “petitioner”.
It would seem that a situation where the Prime Minister was prepared to go to jail rather than follow the law and time was ticking rapidly towards our exit from the EU would fit the bill. While there may be other ways of stopping him dead in his tracks – for example, the Queen could fire him – it’s not clear that the petitioners themselves have any other remedies.
The litigants have asked the Court of Sessions to instruct the Clerk of the Court to sign a letter on behalf of Johnson and send it to the EU if he refuses to do so himself. They also want the Court to declare that the letter is equivalent to one signed by the Prime Minister himself.
The Court is expected to hear the case next week. Although Johnson has sent his defence to the lawsuit, it has not been published. It wouldn’t be surprising if whoever lost appealed to the Supreme Court.
The No 10 quote in the Sunday Times shows that Downing Street is worried. But rather than trying to bully judges by pitting them against the people, Johnson should just obey the law.
Demand a vote on the Brexit deal
Click here to find out moreDale Vince’s name was added to the list of litigants shortly after publication. He is the lead petitioner.
No 10 says “Hopefully judges will reflect deeply on the profound consequences for the judiciary…”
Hopefully judges will reflect deeply on the law of the land and on establishing the proper legal position on the matters before them rather than on their own personal interests.
It is to a great extent because of ministers and MPs giving more thought to self interest than to the interests of the country and the people that we are in this mess.
It is outrageous to suggest that judges should sink to the level of politicians.
I urge you all to read the article on the Federal Trust website which analyses the ” coup ” which is being carried out under our noses to implement Brexit, a significant step in undermining the traditional basis of the UK’s parliamentary democracy. The article is entitled ” A coup but by another means ” or words to that effect.
The language from the ‘Source at No 10’ is threatening and abusive. It shows how low this government is stooping. Asking the judiciary to ‘reflect’ deeply’ on the ‘profound consequences’ if the public sees them as siding with those trying to ‘cancel’ Brexit is a thuggish threat. Perhaps they could spell out exactly what is meant. Is it intending to invoke violence in the streets? It is shameful that ‘No 10’ should speak in such terms. Fargage uses the language of war and violence and it now seems that the Tory government is adopting the same tactic. I wonder what the response would be if remainers spoke In the same way?
The Telegraph came with a story that Juncker didn’t want to retire with a no deal Brexit on his conscience and that his resolve was weakening. What do I read here in Arnhem in (of course) the Dutch language: Juncker stating that Brexit is British responsibility, that they know the score as far as the EU is concerned and if they ignore all that it is their responsibility that they crashed out. It is unbelievable what lying is going on, especially from No. 10 in Tory rags, which will not be picked up if you can’t read foreign languages. The issue described in this article is another typical example of how political officials will blatantly speak untruth and bully other officials. OK, some politicians resort to that kind of tactics but what is far more worrying is that what remains of the 52% still laps it up and believes that Johnson c.s. actually have any chance at all that Brussels will budge on things like the backstop. They won’t, and I strongly hope that the British judiciary have the same quality of spine. Can see the panic behind the street-kid brutality and bluff and draw the proper conclusions. The long prorogation is not necessary otherwise than to make democratic rule impossible and the necessary outcome must be that Johnson is on an illegal course to inflict a highly damaging Brexit on the UK. What ho!
Interesting to hear, Peter, what the Dutch press is saying about all of this. None of it is reported in the UK and it should be. The British (ie Leavers) look at it all from their own perspective without reference to the 27 or European public opinion. Typical arrogance.
The Guardian, however, has been reporting that judicial opinion believes that the Supreme Court is likely to vote against Johnson. 10.30 am tomorrow BST. Fingers crossed.
“the biggest democratic vote in our history.”
The biggest scam in our history, more like. Unwanted by anyone apart from the offshore press barons. Unlawful, void and of no effect, it should be considered never to have taken place, like the prorogation.