If the Supreme Court backs the Remainers on Tuesday, then forget democracy, we’ll be living under THE RULE OF LAWYERS

THERE are uncomfortable truths and, beyond them, unspeakable truths. But, every so often, an unwary politician blunders into uttering one. Business Minister Kwasi Kwarteng did so last week when he responded to the verdict of the Scottish judges who had ruled Boris Johnson’s prorogation – or suspension – of Parliament to be unlawful.

‘I think’, Kwarteng told broadcaster Andrew Neil, ‘that [the judges] are impartial’. But then he blew it by adding: ‘I’m saying that ...many Leave voters are beginning to question the partiality of the judges… People are saying this all the time, “Why are judges getting involved in politics?” .’

The roof then fell on the Minister, who was widely attacked for daring to raise the question of bias.

The truth here is that both of Kwarteng’s statements are correct. On the one hand, the judges – at least most of them – are trying studiously hard to be impartial.

But, on the other, they are increasingly perceived to be prejudiced particularly, as Kwarteng said, by the Leave half of the electorate.

Trying to pretend this isn’t happening won’t make the problem of perceived bias go away.

MPs have reduced Parliament to chaos with the help of a self-regarding Speaker who has blocked the Government by twisting every rule and precedent. And thanks to parliamentary privilege, he has got away with it.

Yet when the Government responds with political tactics of its own, Ministers have been hauled before the courts by Remain fanatics – whereupon the judiciary seeks to hold the Government to the very highest and most abstract of standards. No wonder there are accusations of bias.

Today, there is the fatal impression that Remainers have somehow captured the law and are twisting matters in their favour.

And there is a danger, indeed, that the whole system, including Parliament, is seen to be rigged. There is another, related, danger here: that Government itself will soon be subordinated to the rulings of the Bench, even those parts which have always been protected as political.

On Tuesday, the Supreme Court will give its own verdict on Boris Johnson’s prorogation. So, yet again, an elected Government will be told what political tactics it can and cannot use by unelected judges.

IAM in no doubt that courts try to give their verdict impartially on the basis of whether procedures have been followed or not, but this is to no avail when the cases themselves are fundamentally political. What happened in Scotland is a clear illustration.

After the judges in Edinburgh had delivered their verdict, Joanna Cherry, the QC and Scottish Nationalist MP who had led the case, emerged from court. Was she robed and gowned and carrying learned tomes? Of course not. With arms aloft and scarf draped round her neck she looked like a football supporter celebrating a winning goal.

She’d brought a partisan case to score a political point and she had won. And the judges had let her get away with it. One of the judges declared that Mr Johnson’s behaviour in obtaining the prorogation ‘was an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities’.

Another proclaimed that ‘the courts have jurisdiction to decide whether any power, under the prerogative or otherwise, has been legally exercised’.

If they really are keen to cleanse the Augean stables of public life, however, let me offer their lordships another, even more ‘egregious’ case. The individual in question holds, under the Queen, one of the most solemn and dignified offices in the realm. But, unlike the Queen, he wields immense power. And it is his use of that power which is so questionable.

His former ceremonial assistant says on the record that ‘his explosive and intemperate behaviour is legendary, objectionable and unworthy of someone in such public office’. He has sole responsibility for interpreting and applying the complex regulations of the body over which he presides.

But he does so with gross inconsistency. One day he glories in breaking precedent. On another he sticks rigidly to a rule dredged up from the early 17th Century. In short, the Speaker of the Commons does whatever suits him – and his friends in Remain.

But it is his own words, spat from his chair of office, which most condemn John Bercow. ‘Don’t tell me, young man,’ he raged, ‘what I can and cannot say. If you’re not interested, leave the chamber. I am not remotely interested in your pettifogging objection, chuntered inelegantly from a sedentary position... quite frankly... you can like it or lump it.’

This is the authentic, ranting voice of unreasoned, despotic authority.

It’s a kind of cross between Lewis Carroll’s Humpty Dumpty – ‘a word means just what I choose it to mean, neither more nor less’ – and a Home Counties Hitler. What is the mote in Boris’s eye compared with the thundering great beam in Bercow’s?

If Scottish judges are silent about this truly ‘egregious’ Mr Speaker – as is the whole Establishment – then who can be surprised if there is a complaint of bias? There is one rule, it would appear, for the Leaver and another for the Remainer.

I am of course aware of Clause 9 of the Bill of Rights of 1689, which declares ‘proceedings in Parliament ought not to be impeached or questioned in any court or place outside Parliament’. The original intention was not only to protect Parliament from legal interference, but also to distinguish between politics and the law, which had become hopelessly confused under the would-be absolute monarchy of the Stuarts.

But this noble aim has the immediate, unfortunate effect of protecting Bercow and his deranged authoritarianism in England – though not I think in Scotland – against scrutiny by the courts.

The legal shield of Remain does not stop there. Remain has repeatedly asserted that MPs are representatives, free to vote as they please, not delegates bound by their party affiliation or manifestos; that referenda are merely advisory; that Parliament, by which they mean in effect the Commons and Bercow as its Speaker, is sovereign.

ALL of these hold water, more or less, in legal theory. But only in legal theory. For, beside the law, there is another sphere: the political and the democratic. Ever since the beginnings of one man, one vote in the 1880s, MPs have not been elected personally but on a party ticket and manifesto, to which they owe a fundamental obligation (dramatically breached, of course, by arrogant Remainers such as Dominic Grieve).

The referendum of 2016 was repeatedly and solemnly declared by then PM David Cameron to be binding. Finally, the idea that the Commons is sovereign by itself is an absurdity: without a Government with a clear majority to direct and shape it, it is a mere talking shop and rabble, as the past three wasted years have so clearly demonstrated.

I think we are now beginning to understand what has happened in this dreadful, divisive period since the referendum. Quite simply, the Leavers won politically while the Remainers think they can win legally. Each side is arguing on different grounds and neither will listen or give way to the other.

Meanwhile, the Remainers can get away with anything in Parliament whereas a Leave Government is hamstrung by a network of legal technicalities. It is a gross inequity.

A terrible responsibility therefore rests on the shoulders of the judges of the Supreme Court. Will they go along with Clause 9 of the Bill of Rights and the conforming judgments of the courts in Northern Ireland and London which seek to distinguish between a legal and a political sphere? Or will they listen to the siren voices in Scotland, which claim in effect that all political actions are subject to legal review?

In which case, forget democracy. Indeed, forget politics.

The rule of law will have become the rule of lawyers and we must bow before the Bench. Or rebel.

There is a danger that the whole system, including Parliament, is seen to be rigged