The law is at war with democracy

The Scottish Court’s judgement on proroguing parliament puts power into the hands of unelected judges.

Luke Gittos

Topics Brexit Politics UK

The courts in Scotland have ruled that Boris Johnson’s prorogation of parliament was ‘unlawful’. One of the three judges said that all government powers were judiciable – that is, capable of being assessed in court – prerogative or otherwise. The court made an order stating that Johnson gave unlawful advice to the queen and that therefore the decision to prorogue was ‘null and of no effect’.

Number 10 has rubbished the decision, claiming that the lawyers who brought the case brought it in Scotland ‘for a reason’. The High Court in London had already ruled that the prorogation was lawful just last week.

Labour’s Brexit spokesman Keir Starmer says the case represents a ‘victory for democracy’. In truth it is the complete opposite. Our country is now effectively being run by judges and lawyers. The decision of the Scottish Court represents a significant incursion by the judiciary into the authority of government, and accordingly over the power of the people.

The case will now be heard by the Supreme Court on Tuesday next week. The Supreme Court will have to consider whether the decision to prorogue was judiciable, and if so whether it was lawful. If the Supreme Court agrees that ‘all powers’ are open to judicial challenge, thereby adopting the reasoning of the Scottish Court, the effect on British politics could be catastrophic.

It could mean that any decision taken using prerogative powers could be subject to a legal challenge. Every decision to sign a foreign treaty, to declare war or even to appoint ministers would be open to review by the courts. The longstanding constitutional bar to challenging ‘political’ decisions through the courts would be diluted.

Prerogative powers are undoubtedly undemocratic. They are arcane powers held by the monarch and exercised through ministers. They ought to be abolished. But the decision to subject these powers to greater judicial intervention does nothing to make them more democratic. It merely places power not in the hands of the people or their representatives, but in the hands of the unelected and unaccountable judiciary.

Technocratic MPs may think this is a good thing. Robert Buckland, the secretary of state for justice, tweeted after the decision that he had absolute faith in the independence of the judiciary ‘in every case’. This blanket, unqualified reverence for judges imagines that they are completely immune to the pressures of politics. In fact, the very wording of the decision in the Scottish Courts is political. The judges claim that the prime minister acted with an ‘improper purpose’, based on the government’s desire to ‘avoid scrutiny’. This decision simply could not have been made without making a political judgment about the motivations of the government’s decision.

In one respect this is nothing new. The influence of judges over political life has been growing in recent decades. But if this decision stands, then the authority of government will be permanently subdued beneath the authority of the judiciary. The separation of powers will have been fundamentally altered.

We must hope that the Supreme Court restores the barrier between politics and the law. This is no victory for democracy. It is a victory for the judiciary over the people.

Luke Gittos is a spiked columnist. His new book, Human Rights – Illusory Freedom: Why We Should Repeal the Human Rights Act, is published by Zero Books. Order it here.

Picture by: YouTube.

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13th September 2019 at 1:55 am

This article is somewhat premature given that the Supreme Court will almost certainly overrule the decision of the Court of Session. The chances of the Supreme Court upholding the decision are miniscule.


13th September 2019 at 12:24 am

The law has been at war with democracy since the beginning. Since the monarch is the head of state established by law, the law is at war with the people, who are truly sovereign. The UK’s problems are far more fundamental than Brexit. Brexit is just the tip of a very large iceberg.

Neil McCaughan

12th September 2019 at 4:38 pm

The only business of the legal trade is to hang murderers and imprison thieves. Instead they constantly stick their liquor reddened snouts in matters that do not concern them.

Another swamp, ripe for the draining.

A Game

12th September 2019 at 4:07 pm

Let’s look at the timing of this.
Remain are feeling flat. Their champions of parliament have just shown what a pack of silly twats they are, that their whole strategy – keeping banging on about democracy whilst trying to overturn a democratic vote and ignore what their constituencies represent – couldn’t push past the public’s Bullshit Metre, and Boris just might be prepared to sacrifice himself on the altar of No Deal.

That means, with such despair, they might get off social media and get a life. They might stop flooding London with EU flags and intimidating anyone who might like the idea of Leaving.

They need something to keep their useful hysteria at the maximum. They need to keep hope alive.

And in rolls some dodgy bit of “law”. And the Remainers have sparked up again.
That it won’t stand up to scrutiny in the long run… I don’t think that’s its purpose.

Neil McCaughan

12th September 2019 at 3:52 pm

Scotland is now the most corruptly and incompetently governed part of the UK, thanks to the SNP, which has reduced the place to the standing of a banana republic. The debacle over the imprisonment of the disgraced SNP politician, Natalie McGarry, for embezzlement demonstrates what a complete failure the justice system is.

Prorogation is lawful, and even the bungling clowns in Edinburgh did not dare deny it. Instead they claimed to intuit what was in the Prime Minister’s mind, a first in modern jurisprudence. With such skills they would perhaps be well advised to earn their living in fairground side show. It’s all they are fit for.

Mike Ellwood

12th September 2019 at 4:29 pm

Well said Neil.

Neil McCaughan

12th September 2019 at 5:25 pm

Thank you.

John Millson

12th September 2019 at 11:23 am

Truism: so much of the outrage over the prorogation was due to what was seen as abuse of our uncodified constitution, setting a precedent for any future PM to suspend Parliament for political purposes. Without a codified constitution, judges may be called on more often.
No Prime Minister backed by the Monarch should be able to stifle representatives.

Neil McCaughan

12th September 2019 at 3:44 pm

These particular idiots are representative of an hysterical minority. They deserve no quarter.

Mike Ellwood

12th September 2019 at 4:31 pm

Nicolette Upton

12th September 2019 at 9:55 am

Robin Tilbrook’s case ‘Totally without merit’? Biased judges. Stanley Brodie QC’s comments on civil service alteration to text of Article 50 paragraph 3 put before Parliament. Ignored by media and politicians. Legally we left EU in March. EU defence agreement at last mentioned in the Lords. Shock horror, sweep it under the carpet. The elite ignore or hide the law and the truth. Dangerous.

A Game

12th September 2019 at 4:37 pm

Sounds like you have the tip of an ice-berg there. I’d love you to elaborate!

Puddy Cat

12th September 2019 at 7:59 am

On a more prosaic note you only have to refer to how domestic planning laws are enacted to see the awful, belligerent, blind eye weight of the law in action and democracy treated with shocking disdain. Life is no longer an emotional journey it is whatever the bureaucracy deem it to be.

Dane Watts

12th September 2019 at 3:38 am

The author must be being purposefully disingenuous. Judges interpret laws that are on the books. They have immense power. They don’t always get it right which is why there are avenues for appeal.
This is just another right-wing attack (always posing as “libertarian”) on the judicial system or a complete misunderstanding of the Westminster system.

Judges are given these powers by parliament. Parliament can change laws any day of the week but it has to be in session which it currently isn’t. And that’s the problem here. Boris Johnson has been wedged in his own nefarious games because of a court decision so the pundits must scream “partisan anti-democratic judges” on absolutely nil evidence.
You can always encourage Johnson to re-call Parliament to vote on changing whatever law the judges based their decision on.

Neil McCaughan

12th September 2019 at 3:53 pm

No. These judges are usurping a power they were never given.

Mike Ellwood

12th September 2019 at 4:43 pm

“Boris Johnson has been wedged in his own nefarious games because of a court decision so the pundits must scream “partisan anti-democratic judges” on absolutely nil evidence.”

Nil evidence? Plenty of evidence, such as the Law Lords abolishing the GLC’s “Fare’s Fair” the scheme as ‘illegal’ in December 1981.

stephen richards

11th September 2019 at 10:52 pm

Good article, though I believe the fancy word is “justiciable” (not judiciable). It’s amazing that the Inner House of the Court of Session has the God-like capacity to open windows into men’s souls. What a Pandora’s Box has been opened here. I can’t believe these guys are trained lawyers. Obviously they didn’t go to their Constitutional Law lectures. A strange new world, but not a brave one. But in line with the Remain insistence that when we voted Leave we were really echoing St. Augustine: Make us Leave, but not yet. We didn’t really want to leave at all it seems.The BBC dealt with the previous judgments in a sotto voce way, but with this one it’s a case of “Hey: Bingo”. They can’t contain their excitement. I wonder why?

Dane Watts

12th September 2019 at 3:42 am

Have you been asleep all your life?. Judges have always had these powers under Britain’s governing system. It’s only when there is a decision some people don’t like that they start screaming about it. There are avenues to appeal the judge’s ruling or…Boris Johnson could re-call Parliament and change the law.
But he can’t do that can if he wants to save face.
Johnson has played fast and loose with Parliament and has basically wedged himself. Serves him right. That should concern you more.

Michael Lynch

12th September 2019 at 1:41 pm

What happens if the Supreme Court decide that Johnson acted legally? Will your viewpoint change then, or, will you insist that the Scottish Judges were more impartial and ought to have their ruling upheld? They really ought not busy themselves burying their noses in the political trough.

Ven Oods

12th September 2019 at 2:59 pm

“Johnson has played fast and loose with Parliament …”

And was criticised by Major who did the same thing.
Chutzpah, hypocrisy or age-associated memory loss?

Mike Ellwood

12th September 2019 at 4:49 pm

QUOTE: “And was criticised by Major who did the same thing.
Chutzpah, hypocrisy or age-associated memory loss?”

Well, fair play to the boy. He was probably sh@gging Eggwina Curry back then, and after such a traumatic experience, has been trying to forget that, and anything else that happened around the same time.

Cody Bailey

11th September 2019 at 9:14 pm

“If voting made a difference, they wouldn’t let us do it.” – Sam Clemens

The cries of “Democracy!!!11!!” are the ruling class protesting too much. It is a sham, was always a sham and they have no intention of letting people have a say in how things are run. If that is not apparent to anyone now it never will be. What are the people of England, Ireland, Scotland, Wales, Canada and Australia gonna do about it? They have already given up their guns. They have already given up any say in health care. They have already given up their freedom of conscience. Now they are getting what they wanted, good and hard.

Michael Lynch

11th September 2019 at 7:35 pm

I’m sick of the same old comment today; our judges are impartial! What a load of tosh, one judge will see a crime where another will declare misdemeanor. This happening in the law courts up and down the country every day of the week. How is that impartial? On the one hand we have a bunch of professional liars (MP’s) making new law and on the other we have a judiciary who reinterpret it. Why not just put the judges in charge of making the law and deciding everything.
This madness must stop now, the country is going to pull itself apart otherwise.

Mike Ellwood

12th September 2019 at 1:48 am

A reminder of when the Law Lords overturned Ken Livingstone and the GLC’s “Fare’s Fair” policy, all those years ago:

Dane Watts

12th September 2019 at 3:44 am

So how else do you expect the system of law we have to work?.
Apart from the fact you have no evidence that the judges were not impartial- doubtful you even know their names ( I don’t) – how are you going to ensure judges are impartial?.

Michael Lynch

12th September 2019 at 1:36 pm

My point precisely, you can’t ensure impartiality. No one is and that’s why they should have done the honorably thing, like the one in Northern Ireland this morning, and declared that there are certain boundaries they ought not to cross. Namely political ones.

Jerry Owen

11th September 2019 at 7:17 pm

Blair brought in a law whereby a PM could suspend parliament if there were a ‘state of emergency’ . Presumably the courts will now be able to take that decision away from the government and decide for themselves if a state of emergency exists.
The question arises as to just who runs Parliament , elected MP’s or the unelected courts.
Quite worrying really .

Christopher Tyson

11th September 2019 at 7:09 pm

The centrist are always very proud of’ our unwritten constitution’, when it suits them. We have parliament and we have conventions and we have experienced politicians with a feel for how things work. There are an array of devices and technicalities that have at their disposal, when thwarted they moan and groan and move on, ‘well played old boy’, ‘devious devil, we’ll get you next time, how about a drink in the bar?’. As a young man I was pretty cynical and anarchistic, it was reading Living Marxism that really won me over or awakened my inner liberal to the importance of the rule of law. In the UK for sometime now, the rule of law has been chipped away at, usually in the name of defending and supporting victims, double jeopardy, the amending of the right to remain silent, and all manner of other measures. As Living Marxism used to warn this diminishment of the rule of law ultimately acts in the interests of the powerful. The little man may win a victory or two, indeed it is in the interests of the establishment to make sure that this happens, put ultimately the law is not radical the law is for the status quo. Parliament is full of lawyers and they are more than happy to spend their day having arcane legal arguments and jousts. Theresa May went off to Europe with her bag man, she stitched up a deal and returned with what she believed to be a fait accompli. The voters were sidelined, Brexit became a narrow party political and media spectacle. Now they would have us believe that it is ‘all about Boris’, if they can bring down Boris they believe will win, and they may be right. So we have the separation of powers a mechanism for preventing tyranny, or is it? The separation of power means that establishment power is not in one place, if you want to challenge the establishment where do you aim? The courts, the media, the monarchy, the House of Lords, Channel 4 news, Parliament, the Conservative Party, The Labour Party? Which ever way you look is ‘The Man’, the same man with different hats. We must not let cynicism get the better of us. Living Marxism were always critical of Scargill for refusing miners a ballot during the miner’s strike, leaving him open to a devastating challenge from the courts, some of us looked on frustrated as Boris handed his opponents (more importantly opponents of Brexit) an opportunity. I would continue to oppose those who believe that acting outside of the law is inherently radical, a universal appeal to liberal rights remains the most potentially fruitful means of achieving peaceful political change (or justifying violence when the liberal system has be seen to have broken down or evolved into its opposite). And yet I see my young anarchistic self looking at me and saying ‘I told you so’.

Jim Lawrie

11th September 2019 at 9:30 pm

Don’t be hard on yourself. What we are witnessing is the proposition that there can be exceptions to that principle.
Your understanding is accompanied by the necessary acceptance, without which there is no rule of law. Implicit in that is that it applies universally.
It started with them not accepting the result.

Jerry Owen

11th September 2019 at 6:50 pm

The Scottish court decided that they knew why Boris prorogued Parliament , he said it wasn’t Brexit they decided it was.
The Scottish courts are in fact calling Boris a liar, how could they prove it? Although not a Royalist they are now prepared and indeed are now dragging the Queen into this for their own political gain.
That is a new low for the remoaners.

Geoff Cox

11th September 2019 at 6:43 pm

Well this Court is just following the precedent set by the European Court of Justice which is overtly political – one of the reason we need to get away from it. Power and making political judgments without a mandate, without scrutiny and without accountability.

James Knight

11th September 2019 at 6:06 pm

These MPs preferred to sulk in parliament rather than face the electorate in a General Election. And the Scottish court looks like a case of what happens when you give somebody a little bit of power, they become meddling officious pricks.

They want to permanently prorogue parliament by keeping the UK in the EU. They should choke on their own hypocrisy.

Jim Lawrie

11th September 2019 at 8:05 pm

“They want to permanently prorogue parliament”. The court, by not slapping an interdict on the prorogation and thus ending it, are leaving the decision to reconvene to the MP’s, or to a higher court.
But what happens if the prorogation is ended? Might the strike at terminal 5 see some poor MP’s stranded on the beaches, from where to fight us?

You can bet that the well connected Aidan O’Neill, QC in both countries, and to whose expertise judges bow, will be in discussion with his learned friends in England. And Europe. Private, of course.

On the positive side, the Courts and lawyers show that they are not that sure of themselves. Hence the broad front of cases from all three jurisdictions. Surely all these lawyers cannot be wrong?

Dane Watts

12th September 2019 at 3:46 am

As PM Boris Johnson can re-call Parliament at any time. The EU has nothing to do with it or any power over it.
Boris Johnson successfully wedged himself.

Mike Ellwood

12th September 2019 at 5:01 pm

12th September 2019 at 3:46 am

It turns out that he would need the agreement of the Speaker. Given how much Bercow (literally) set his face against Prorogation, would he necessarily agree to a recall on Johnson’s whim? We can’t guarantee that. Besides which, he’s probably settled down into the latest Jeffrey Archer or Dan Brown at some airport somewhere.

Jim Lawrie

11th September 2019 at 5:22 pm

The decisions of the elected are now subject to the approval of the monied.

How long before the electoral process that put Boris in No. 10 is declared undemocratic, and therefore, unlawful? That it is best to cut out the untrustworthy middleman, and select, rather than elect, these functionaries. Directly. As in The EU.

Or perhaps a compromise. A list of approved candidates. Meeting all the quotas. Except class.

Mike Ellwood

12th September 2019 at 5:03 pm

Followed by a list of approved voters. Can’t leave anything to chance.

Bronk’s Funeral

11th September 2019 at 4:17 pm

Carry on flapping, lads.

Jim Lawrie

11th September 2019 at 6:07 pm

“Aidan O’Neill QC, representing a group of pro-Remain politicians, raised the prospect at Scotland’s highest civil court of MPs instructing the UK Government to withdraw its Article 50 notification.

He said the approach could be adopted if judges at the European Court of Justice ruled that it would be legal to do so.

He urged Lord Boyd to accept the argument and allow his clients to take their case to the ECJ for a definitive decision.”

Sounds like old hat now.

Cody Bailey

11th September 2019 at 9:18 pm

“…the prospect at Scotland’s highest civil court of MPs instructing the UK Government to withdraw its Article 50 notification.

He said the approach could be adopted if judges at the European Court of Justice ruled that it would be legal to do so.”

So the EU gets to make rulings on how the courts in the UK are run, especially with regards to how it handles Brexit?

I am gonna take up a collection and try and buy everyone in the UK soft, cushiony kneepads. they are gonna need them.

A Game

12th September 2019 at 4:44 pm

And adding to my statement that this turd is merely a tool… it sounds like they are desperately looking for the launch-pad to get this into the Euro courts.
They’re plotting and planning: Just how to get this out of British hands and into Daddy EU’s control.

Nasty, ugly stuff.

Inch by inch… the call for the Cultural Revolution gets warmed up. (Just for the record: Moa’s call for the CR was the vilest manipulation of his people. Unnecessary, pointless, cruel. He’d won the revolution. But what the British Establishment is doing? That they have completely lost any ethical compass – win at any price. How does Britain ever go back to letting these people preside over anything? How does their “opinion” ever have any meaning ever again?

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