11 September 2019

Why the Scottish court ruling is more than just a political problem for Boris Johnson

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Just as the Westminster bubble was winding down in preparation for a few weeks’ respite from the Brexit drama, a Scottish court has thrown a live grenade into the ongoing constitutional controversy.

In a ruling which has stunned many observers, three judges have ruled that Boris Johnson’s advice to the Queen to prorogue Parliament was unlawful because it was done for an improper purpose. It’s a judgment that directly contradicts the decision of an English court, which last week threw out a similar challenge.

The Supreme Court is now set to hear the case on Tuesday, and today’s decision has thrown into doubt what previously seemed a near-certain ruling in favour of the Government.

Reaction to the decision has split on predictable lines, albeit with even those in favour conceding that it was a surprising development. For now, informed commentary is hindered by the fact that we have as yet only a summary judgment, with the full legal justification to come later.

It will therefore be some time before the full legal dimensions become clear – and their significance will in part depend on the eventual ruling of the Supreme Court.

But constitutional affairs are inevitably political, as well as legal, and the political fallout from today’s ruling awaits no appeals.

In the immediate term, it’s another headache for the Prime Minister. Just as he thought he had finally won some breathing space in which to roll out his domestic agenda, he is once again mired in a story about constitutional impropriety – this time with the added insinuation that he might have done wrong by the Queen, which is not a position any Conservative prime minister should wish to be in.

His problems will multiply next week if the Supreme Court decides to row in behind the Scottish judgment, because the result will be that prorogation is annulled (meaning that legally speaking it never happened). Parliament will return, and we can expect the circumstances of their return to only heighten MPs’ appetite for inflicting on Johnson the miseries they have become so adept at.

A sign of the problem Johnson faces is that even expert observers, such as Dr Catherine Haddon of the Institute for Government, are framing this question in terms of whether or not the Queen can ‘trust’ Downing Street. Setting aside for a moment the question of whether or not Her Majesty can or should reject ministerial advice on the use of the prerogative – a hotly-contested question which cuts to the heart of several constitutional disputes – it seems unfair to suggest that the Prime Minister somehow knew his advice was unlawful when today’s judgment has come as a surprise to nearly everyone.

Yet if close observers are slipping into such language, the nuances of Johnson’s defence may well be lost on the public.

Not everybody thinks this is an unmitigated setback for the Government. There has been some suggestions online that this might play into Dominic Cummings’ ‘People versus the Establishment’ strategy. It would certainly give him a confrontation with the judiciary without the Prime Minister actually breaking the law over extending Article 50.

Will this work? It’s difficult to say. There is definitely a market for attacks on ‘unelected judges’ – which exists quite independently of the intellectual case against judicial activism – and may yield an electoral dividend.

But the Government might want to be wary of attacking the Court of Session in specifically Scottish terms, as some of its current briefings could be seen to have done. It may not help the Conservative campaign in Scotland if the Prime Minister is seen giving both barrels to Scottish institutions. If he doesn’t want to hand grievances to Nicola Sturgeon the self-styled ‘Minister for the Union’ must ensure that his criticisms of the judiciary do not become criticisms of the Scottish judiciary – especially as it appears that the judgment is not based on differences between Scots and English law.

Beyond the specifics of this case, however, it looks like today marks another step towards a looming confrontation between the judicial and political elements of our constitution. With partisans increasingly resorting to lawfare in pursuit of political goals, and the judiciary slowly but seemingly inexorably trying to carve themselves a new place in our settlement (as examined by Policy Exchange’s Judicial Power Project), it seems increasingly likely that some sort of clash is coming.

Whatever the particulars, such a battle would be corrosive to our politics and constitution. The reason that the constitution is such a high-stakes issue – for all that it can seem dry and arcane – is because it is fundamentally about the rules by which the game is played. Once the impression sets in that the rules are being unevenly applied, or rewritten on the fly, it erodes trust in both rules and umpires alike.

A system wherein one side believes that those responsible for enforcing the rules are ‘on their side’ and the other believes just as strongly that they’re not is on a fast track to institutional breakdown – as the House of Commons under John Bercow could be argued to illustrate. Appeals for Brexiteers and others to cleave to ‘the rule of law’ will be robbed of their power if that is seen to mean the rule of hostile lawyers.

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Henry Hill is assistant editor of ConservativeHome.