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 pleasesby Jolyon Maugham / December 14, 2019 / Leave a comment
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…