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.