Before The Cock Crow, Thou Shalt Deny Me Thrice

SCThere are a lot of lawyer jokes. And sometimes I do feel a bit queasy about what my professional colleagues do. But I do not think I have ever felt ashamed of being a lawyer as I did when I read the judgment of the Supreme Court in Miller v Prime Minister.[1]

Three times[2], the President of the court, Lady Hale, denied that the case was political.[3]  Few will believe that denial. Clearly, the proceedings were brought for a political purpose, and the judgment against the government is clearly part of a determined reluctance by the British establishment to give effect to the democratic results of the Brexit referendum in 2016.

The Supreme Court was wrong on all three elements of its judgment:

  • The Judiciability Issue
  • The Lawfulness Issue
  • The Remedy Issue

The Judiciability Issue

As the Supreme Court rightly acknowledged, this was a “one-off” case. And in this case, the Supreme Court – and the Inner House In Scotland – has gone much further than any court has ever gone before. Inevitably, the exercise of prerogative powers by a government, including the power of advice in respect of prorogation, is fundamentally a political one. Of course there are hypothetical circumstances in which the exercise of prerogative powers might extend to legal ground (where, hypothetically, a prerogative power was obtained by bribery) or to constitutional ground (where, equally hypothetically, the government might seek to prorogue Parliament for five years). But here, where the argument about the prorogation period essentially boils down to just a few days over and above the usual conference recess, the issues are entirely political. And of course political issues tend to be multifaceted, governments being required to weigh all sorts of political considerations into their decisions.

At paragraph 52 of the judgment, the Supreme Court noted that it was common ground that the courts can rule on the extent of prerogative powers. But acknowledging that the court can rule on where the dividing line lies between where it can go, and where it cannot go, is not the same as saying that the court can go wherever it likes.

There are very sound reasons, both legal and practical, why the court should not play politics by judging the soundness or otherwise of political decisions. Judges are not democratically elected, and they have little or no experience of politics, nor of the real world considerations which distinguish good government from bad government.

The Lawfulness Issue

The lawfulness issue was essentially decided on the basis that the government had failed to satisfy the Supreme Court as to the need for the length of the prorogation. In other words, the court was saying to the government “Unless you can prove to us a good reason for everything you do, we are likely to rule it void”. More exactly, the court said this:

  1. It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.

That is bonkers. These actions were bought by Joe Blow. If Joe Blow can require the government to produce a good reason for everything that it does, government will be ground to a halt, particularly in circumstances where the court “cannot speculate” why the government is doing what it is doing, and accordingly declares the government’s actions void.

Quite apart from anything else, it is difficult to see how the confidentiality which is necessary for so many aspects of government can possibly be preserved.

It is ridiculous to suppose that Parliament can micromanage every action of the executive. It is even more ridiculous to suppose that the courts can do this.

In legal terms, it is a reversal, so to speak, of the burden of proof. Typically, exercises of executive power can be challenged, on limited grounds, if it can be proved that they are unlawful. This judgment says the opposite. It says, in effect, that exercises of executive power are automatically void unless the government can prove that they are lawful.

Bonkers.

The Remedy Issue

The judgment on the remedy issue is equally worrying. The Supreme Court had no evidence at all as to what advice was given to the Queen about the prorogation. In all probability, she was given no detailed information in this case at all as to why the prorogation was being advised, or for how long, but was merely told that the advice of her ministers was for the prorogation.[4] In those circumstances, it is bizarre indeed that the act of the Queen, in ordering prorogation, should have been treated as void. Particularly in light of the undertaking given by Lord Keen on behalf of the Government that the Prime Minister would give effect to any declaration that the Supreme Court might make as to what advice he was bound to give to the Queen.[5]

In law, this aspect of the decision is novel and a hugely undesirable intrusion by the courts on the exercise of the Queen’s powers.

In practice, it is even worse, and bodes ill for the future. If the government, in the future, entered into treaties with foreign nations, are a court to say that that treaty is null and void because it doesn’t like some aspect of the advice that led to it? If the government declares war, are the courts – weeks or months later – to say that the country has never been at war because it doesn’t like some aspect of the advice that led to the declaration of war? Try explaining that to the nation’s enemies!

Bad politics

Not only is the judgment bad law, it is also bad politics, for two reasons.

Firstly, the effect of the judgment will be to sow yet further delay, confusion and uncertainty into the political process, to the detriment of the nation. Of itself, the decision on prorogation is not so important. The government can simply prorogue again.  What is much more important is that the judgment signals unwillingness by the Supreme Court to intervene, by way of attempted micromanagement, in the Brexit process. That places the United Kingdom at a massive disadvantage in its negotiations with the EU.

Secondly, the effect of the judgment will inevitably be to polarise the country yet further into a schism between the people on one side and the Deep State on the other. The legal actions in question (and indeed the Supreme Court’s judgment itself) are obviously attempts to frustrate Brexit. And all the people who voted for Brexit, and many of the people who vote to remain, are bound to intensely resent such political interference by the courts.

For completeness, it might be added that there is a silver lining for people who want Brexit to happen: it will add further to public support for the Prime Minister – doggedly fighting to give effect to the biggest exercise of democracy in recent times. It is hard to believe that a general election can be avoided for too long now, and when that general election comes then – if the polls are to be believed – the Remain plotters will very largely be driven out of the House of Commons. When both the Government aand Parliament are supportive of delivering Brexit, it is hard to see how Brexit can be stopped, even by the courts.

The Taste of Human Flesh

The judgment is not only an attempt by the Supreme Court to put obstacles in the way of Brexit, it is also a power grab.

One must inevitably worry whether the courts, having tasted such power, will be able to exercise any proper restraint in the future. Almost all political experience, both in the UK and elsewhere, suggests that once a body has tasted political power, it does not easily relinquish that taste.

That is very bad news.

Groupthink

A feature of the judgment of the Supreme Court is that it was unanimous. It is hard to think that is consistent with the members of the court doing what they are supposed to do – to exercise their independent judgement.

In the courts below, there were four decisions, three of which were in the government’s favour, and one of which was against the government. So we can start with the proposition – being favourable to the plotters – that the point was finely balanced.

The Scottish Inner House consist of three judges. On the flip of a coin, the odds of one independent judge agreeing with another is 50-50. The odds of the third independent judge agreeing with that is half as much is that, i.e. 25%.

A similar analysis applies in the Divisional Court. The odds of three independent judges coming to the same view on evenly balanced issue is again 25%.

The Supreme Court consisted of 11 judges. The odds of 11 judges, if they had exercised their independent judgement, coming to the same conclusion are 0.5^10 to 1, roughly .09%.

The only conclusion to be drawn from the fact that the Scottish Inner House, the Divisional Court and the Supreme Court were all unanimous is that there was a significant degree of groupthink going on here.

And, as we all know, groupthink is the dumbest sort of thinking that walks abroad.

 

 

 

 

[1] [2019] UKSC 41.

[2] At the beginning of the proceedings, at the end of the proceedings under paragraph 1 of the judgment.

[3] Like Peter; see Matthew  26:33-35. I do not draw this comparison in order to give any credence to the Gospels, but merely to add the colour of a bit of biblical disapproval.

[4] There might well have been two aspects to this. When Jacob Rees Mogg and two other privy councillors flew to Balmoral, there are unlikely to have discussed any reasoning with the Queen at all. There might well also have been private discussions between the Queen and the Prime Minister at their regular weekly meetings. For very good reason, those discussions are strictly confidential; the Queen has immense experience, and it is a valuable part of her role to be able, in strict privacy, gently to enquire of her Prime Ministers what they are doing and why and, where appropriate, to provide the benefit of her very long experience.

[5] One only has to formulate the notion that the court should have power to tell the Prime Minister what advice to give to realise what a bonkers notion that is.

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5 Comments

Filed under Brexit, Legal, Politics, Uncategorized

5 responses to “Before The Cock Crow, Thou Shalt Deny Me Thrice

  1. Scarily more knowledgable than the author.

    Wow, this is unqualified hyperbole masquerading as knowledge. You’ve never been anywhere near law school. This is an opinion piece masquerading as an expert analysis and only an under-informed child desperately clutching at confirmation bias would credit it with anything more than conjecture and hyperbole.

  2. Lawson Spedding

    It is obvious to all, unless a REMOANER (and they would argue the sea is actually red if it stopped BREXIT), that the 11 Supreme Court judges have colluded to make a political decision out of a legal question ! They are ALL REMOANER biased, some are personal friends of Tony Blair, the Chair has publicly advised her wish to remain in the EU. They are a disgrace !

  3. stephen marsh

    Law is only enforcible if it is seen to be honest and fair This decision makes a mockery of our great judicial system It gives carte blanche to disregard any law

  4. Derek Reynolds

    Mr. Elliott, thank you for your article on the UK Supreme Court.

    I am a complete layman when it comes to Law, though I always took an interest in court proceedings ever since ‘Boyd QC’ was on the television as a series in the late 1950’s, it was a world unkown to me, and happily has remained so on a personal basis! I am retired and live in rural Shropshire, though London born & bred.

    We have an anomaly here in the UK, where if you question anthropological climate change or indicate a wish in leaving the European Union, fantastic beasts are concocted to deny a safe path – from Greta the Frightened and the moronic XR, to no hearing in court – unless to be rejected or denounced with joyous laughter (Mrs. May & Gina Miller), and after more than three years of obfuscation. Scientific data and logic have gone out the window – along with democracy.

    Clearly there are forces at work who are seeking a higher level of control globally.

    The 2016 referendum results showed; 17.4m people voted leave, 16.1m remain; 406 constituences leave, 242 remain; Constituency by Party: Lab. 148 leave; 84 remain; Cons. 247 leave, 80 remain; By Region: 9 leave, 3 remain; by MP: 160 leave, 486 remain

    How does that work?

    The Supreme Court is an invention (in the UK) of one Tony Blair, possibly to cover his backside over WMD. That their decision over Johnson’s action to prorogue Parliament is unlawful, smacks of corruption – down to the blatant wearing by Lady Hale of a large spider brooch when sitting. ‘Shelob’ has spoken. And why, would she have questioned Johnson’s team prior to the hearing of what they would next do after judgement – if it went against them? Surely to discover, plan, and further thwart any future move. This was a pre-ordained judgement.

    So what does the population at large think about this? By and large they are furious. We might even go as far as rolling our eyes. Civil war is not something to contemplate, but the groundswell is palpable.

    This is the people against government and the judiciary, but we are only ‘cattle’, and ‘they’ have electric prods and tazers.

    Many thanks for another legal viewpoint.

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