As Boris well knows, the law now has a worrying influence on politics
Ever since Tony Blair upended the British legal system the courts have only gained more power
To Boris Johnson’s army of enemies, the timing is perfect. As the Tory leadership contest draws to a close, its most likely winner will be summoned to court to face criminal charges. He stands accused of saying that Britain sent £350 million a week to the European Union, when he should have said £250 million. The figure, of course, doesn’t much matter: this is lawfare, a form of combat where the process is the punishment. To put him in the dock is, itself, victory.
The whole episode may seem ridiculous, but then again, so did the Gina Miller case when the Supreme Court was asked to tell Theresa May how she should go about enacting Brexit. This seepage of law into politics has been under way for some time, and Boris in court would be just the latest manifestation of a worrying trend. Foreign policy, military interventions and other government ideas have systematically yielded to the power of judges: a point made not by any Brexiteer but former Supreme Court judge Lord Sumption, now midway through his brilliant Reith Lectures. So what has gone wrong?
Many countries do use lawyers as political hitmen. Russia has a habit of imprisoning politicians, America sends special prosecutors to torment sitting presidents. But Britain has – until recently – been a place where the law was kept a safe distance from politics. The understanding was summed up nicely by Lord Denning in 1971 when an activist tried to sue to stop Britain joining the European Community. The prerogative power of an elected government, he said, “cannot be challenged or questioned in these courts.” If politicians erred or lied, then justice would be served by voters at the ballot box. As is their exclusive right.
Things changed when Tony Blair swept aside 1,400 years of history by abolishing the post of lord chancellor and replacing the law lords with a Us-style Supreme Court. He also adopted various European legal charters – on human rights and more – whereby it suddenly became a lot easier to accuse the UK government of breaking international law. An activist could set up a judicial review, sue the Government – and in a lot of cases, claim legal aid to do so. When Andrew Adonis was Blair’s education minister, he told me how absurd it was having to hire government lawyers to fend off other lawyers, hired by activists but funded by the taxpayer.
When Michael Gove was education secretary, he found that time and time again he was unable to deliver the school reform he had promised voters due to fear of being sued under laws introduced at a European level. Not just the human rights that Parliament voted to adopt: the EU’S Charter of Fundamental Rights ended up applying to Britain, in spite of several promises that it wouldn’t. This is one of the main reasons that Tory ministers ended up backing Brexit: they were mugged by reality. Their day-to-day work proved to them how Parliament had lost control of the law. Leaving the European Union, they thought, was the only way to take back that control.
Today, politically active lawyers can talk to each other on Twitter, dreaming up ways to thwart Brexit or hound their various enemies. In Boris Johnson’s case, £430,000 was raised through a crowd-funding website for a private prosecution – a new technique, offering a world of potential. If a district judge can be asked to decide whether to prosecute a politician for lying – a huge decision – would they dare throw the case out, given the huge public interest? Safest, surely, to refer it up to the crown court.
Once, such political games were unthinkable in the English system, but the checks and balances are failing. The Crown Prosecution Service should have taken over the case, given the sensitivity. But the CPS itself is becoming more political (its former chief prosecutor, Keir Starmer, is now a Labour MP) and its decisions are less predictable. So we end up with the bizarre and deeply un-british spectacle of an MP facing a political accusation, where the maximum penalty is life imprisonment.
This brings all kinds of unintended consequences.
The very possibility that the Boris Johnson case will go to court threatens immediate restrictions on what the public can be told. One Tory MP has referred to him using words, which my colleagues at The Spectator cannot repeat because our (excellent) lawyer says this might land us in contempt of court. Is he right? Maybe, or maybe not, but a small magazine like ours cannot afford the risk. And what if a political row now builds up about whether he was right to use the £350 million figure? Several broadcasters are being sent legal advice saying that his guilt – or otherwise – must be off the agenda. When political debate is criminalised, the chill factor is wide and immediate.
And if politicians can be taken to court through a private prosecution funded by their enemies, where will it stop? How far back will it go? Some might have seen poetic justice when, in 2005, Tony Blair was investigated under his own hate crime law after reports that he had once been rude about the Welsh. For Tories, this was a richly comic moment. But something had been unleashed, then, that was never put back under control.
Even if the Boris Johnson case never goes to trial, it is appalling that things were allowed to get this far or that a district judge was ever left to handle this political grenade. The EU cannot be blamed for any of this. It is a mess made in England, one that has not been helped by successive Tory ministers who have, over the years, grown used to pointing the finger at Brussels. A lazy excuse which, soon, they won’t have any more.
If someone like Lord Sumption is warning that “law is now the continuation of politics by other means,” then it is time to worry – and think carefully about what his words imply. Politicised courts will lead to elected judges, with the rest of the American lawfare model following soon behind. More fundamentally, he asks, “is litigation the right way to resolve differences of opinion”?
A good question. And one for politicians, not judges, to answer.