How cowed judges could let Boris Johnson break the law

Unchecked, unbalanced and channelling an unsavoury populism, a prime minister that I’ve helped to keep in check in the courts could soon be free to do whatever he pleases

December 14, 2019
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With the new prime minister come threats in battalions. An enormous majority. A distracted and divided Opposition. A national broadcaster operating under existential threat. A political leader advertising a populist intent as “The People’s Government.”

Where will challenge come from? Not the House of Lords—which was served notice in the Conservative manifesto that its role would be reviewed. And not from a written constitution—the only higher law able to constrain a government with a majority in parliament is the EU law we are abandoning.

From the judiciary? This, of course, is the route I have chosen as Director of the Good Law Project. The years since the referendum have seen me launch the Miller case articulating the principle that only parliament can remove citizens’ rights; the Wightman case establishing that Liz Truss, then Lord Chancellor, was wrong to deny parliament the option of revoking Article 50; the Cherry case proving government could not suspend parliament as an inconvenience; and the Vince case showing that even the prime minister is bound to parliament.

But threats come in battalions.

When he was defeated in the Cherry case, Johnson baldly said the Supreme Court—the ultimate arbiter on constitutional law—was “wrong” to decide the matter as it had. And Geoffrey Cox–the prime mnister’s Attorney General who had advised that the suspension of parliament was lawful —demanded political scrutiny of Supreme Court appointments. Meanwhile, the Conservative Manifesto pledges to limit judicial review—the legal mechanism by which the government can be constrained to act in accordance with law.

So it is hard to look with confidence to judges.

Although the textbooks might paint a judge as solitary creatures sitting aloof of the political fray, the reality is rather different. In theory her legitimacy stems from a supposed indifference to the bump and grind of daily politics. But in practice, and especially in political spheres, judges are alert to what happens around them, what is said of them, and their perception of the public mood.

They will have seen a prime minister style himself as “The People’s Government.” They are not so blind as to miss this attempt to perpetuate the power of the referendum, a power channelled directly from the people to him, and for all of his actions. The narrative Boris Johnson has chosen for himself presents any interference—whether by judge or some other—as in defiance of the “will of the people,” and thus anti-democratic.

It would be foolhardy to ignore the evidence of the past and pretend the government will be slow to voice such insinuations of illegitimacy. And this government will now claim to be armed with a democratic mandate to curtail the ability of judges to scrutinise.

And it gets worse. The rule of law derives its power from popular consent, and is buttressed in the face of a hostile executive by a supportive media, an opposition, and parliament. The Opposition is weak, parliament is hostage to the project and much of the media is hostile to the rule of law.

Judges will respond, inevitably, by husbanding their authority. Putting it less politely, they will develop a tendency to overlook law breaking by the executive. Just as the BBC, anxious to preserve the licence fee, will think twice before criticising a government that holds its future in its hands, so too judges, who have often stood up to it in recent years, will now become newly sensitive to criticism. Ultimately it will be the inhibitions of the bench—and not clumsy political schemes to vet Supreme Court appointments, or attempts to constrain judicial review by statute—that will do most to diminish the rule of law.

But the outcome will be the same. The only functioning bulwark against an executive greedy for ever-more power will be more or less enfeebled. And Boris Johnson’s disdain for the rules constraining you and I will be liberated from all control.