Bill of Rights ‘can defeat Remain court case’
Historian urges Johnson to rely on 330-year-old document to see off challenge to prorogation
BORIS JOHNSON should rely on the 1689 Bill of Rights to see off the Remain challenge in the Supreme Court, David Starkey said yesterday.
The television historian said that the nine justices ought to avoid getting involved in Brexit, adding: “If judges rule on political matters where is no obvious law to base themselves on, it is simply three legal opinions against one legal opinion. I am afraid what they are doing is political. And I will write the headline, ‘Three judges against 17.4 million voters’.”
Mr Starkey said he was astonished that Government lawyers had failed to rely on the legal protections set out in section nine of the 1689 Bill of Rights.
The section states that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.
Speaking to LBC radio, Mr Starkey said: “The great problem is that we are mistaking the rule of law for the rule of lawyers.”
He added that judges were confusing
Rally the troops
“two forms of sovereignty – the legal sovereignty of Parliament and … the political sovereignty of the nation”.
He added: “The devastating, dangerous thing is when judges rule on the political sphere.”
Mr Starkey said the Bill of Rights tried to distinguish between the legal and the political sphere. Section Nine says proceedings in Parliament should not be impeached or otherwise questioned in any other court or place.
He continued: “For reasons I do not understand, the Government has not resorted to this – the whole problem of the Supreme Court judgment in the Gina Miller case – it was not put against this broad historical background.
“This is the issue that was debated The Bill of Rights 1689 is part of the uncodified constitution.
It was passed following the Glorious Revolution against James II.
It lays down limits on the power of the monarch and sets out the rights of Parliament. It also legislates against cruel and unusual punishment and taxation without Parliament’s approval.
It was the model for the US Bill of Rights of 1789 and other human rights laws worldwide. by Jonathan Sumption in his [BBC] Reith lectures. What are the bounds of law, what are the bounds of politics?”
The Brexit debate heads to the Supreme Court – the UK’s highest court – on Tuesday for a three-day hearing. Petitioners including Ms Miller and Sir John Major, the former prime minister, will argue that Mr Johnson was wrong to suspend Parliament for five weeks.
The judges are due to publish their ruling next week. Any defeat for the Government will most likely only see MPs return a week early, shortly after the Tory Party conference.
An investigation by The Sunday Telegraph found several of the justices have expressed support for the EU in the past, calling their impartiality into question. Lady Hale, president of the Supreme Court since 2017, has said that politicians had to decide whether withdrawing from the Human Rights Convention, and in effect the EU, was a “price worth paying” to reduce immigration.
The Yorkshire-born judge, married to law commissioner Julian Farrand, has also said that the government’s austerity policies have posed some “uncomfortable problems for the courts”.
The spouses of other justices have also voiced anti-Brexit sentiment on social media. Miranda Wolpert, a clinical psychologist married to Lord Sales, has retweeted articles claiming a nodeal Brexit poses a danger to the UK science industry.