The judges must not join MPs as Brexit back-seat drivers

The Supreme Court is about to hear appeals from two conflicting judgments. The High Court held that Boris Johnson’s advice to the Queen to prorogue Parliament until a new session starting on Oct 14 is lawful; while the Inner House of the Court of Session – Scotland’s equivalent of the English Court of Appeal – held the opposite.

Lord Burnett, the Lord Chief Justice, and two other senior English judges gave the High Court judgment. They decided that whether to prorogue Parliament, and for how long to prorogue it until the next

parliamentary session, are so inherently political in nature that there are no judicial or legal standards by which the courts are able to assess the legitimacy of the action taken.

They pointed out that the timing of prorogations has been used in the past by governments for reasons of political or legislative advantage.

The post-war Attlee government artificially created a very short session of only a few days in order to override resistance in the Lords against the reduction of its veto powers.

So even if the length of the prorogation was designed to advance the Government’s political agenda regarding Brexit, that is not territory the courts can enter into.

The contrasting Court of Session decision was given by Lord Carloway, Scotland’s most senior judge, and two other senior colleagues. The Scottish judges were much more willing to wade into making an assessment of the political factors.

They concluded the true reason for the timing and length of prorogation was not just to prepare for the new session, but to “stymie” parliamentary scrutiny of Government action in the lead up to exit day on Oct 31, and that such an intention was “unlawful”.

The problem with this approach is that it involves judges deciding what are good or bad political reasons.

One very important reason in the national interest for Parliament not to sit until Oct 14 is so the EU should be made to realise that it must offer concessions in its negotiations with Boris Johnson in order to avoid a no-deal exit. If Parliament were to be in session across this period, the EU would assume further moves there would even more undermine the Government’s position – so why should the EU make any concessions at all until it becomes clear that Parliament cannot further interfere?

The Scottish judges disregarded this central and critical reason – preventing Parliament from undermining the UK’s international negotiating position – for Parliament not to sit during the lead-up period. They emphasised instead the importance of parliamentary scrutiny during a “vital period”. They noted the absence of a majority in Parliament for a no-deal exit, and that such an exit would have “adverse effects”, surely not matters which judges should take into account. What right do judges have for saying that Boris Johnson’s reasons for proroguing Parliament are good or bad political reasons? Or for saying that it is preferable for Parliament to be in session, than for the UK’s international negotiating position to be strengthened?

For judges to devise out of thin air a list of good and bad political reasons, and to decide that one reason should outweigh another, is to step outside the judicial role and enter inevitably into the realm of politics.

Some commentators have suggested that the Scottish decision was based on Scottish legislation – the Claim of Right of 1689 which was the parallel in Scotland of the English Bill of Rights of the same year. But Lord Carloway made clear the decision was based on common law principles which should be the same in Scotland and England, and not on any “speciality of Scots constitutional law”.

The Supreme Court will now have to decide between the conflicting approaches of these courts.

They should resist the temptation to allow judges to approve or disapprove of Government decisions for political reasons. It is difficult enough for Mr Johnson to conduct negotiations with the EU with a squabbling Parliament back-seat driving. The involvement of judges would make it even worse.

‘What right do judges have to say the reasons for proroguing Parliament are good or bad reasons?’

Martin Howe QC is chairman of Lawyers for Britain