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The Dogs that Haven’t Barked (Yet)

September 25th, 2019

Public schoolboys should never underestimate girly swots (Joanna Cherry QC, Lady Hale, Gina Miller). Nor should Tory Ministers, though judging by their reaction since the judgment, they seem to be doing everything possible to show they still don’t believe the law applies to them. Rees-Mogg, a man without any legal training and author of an execrable history book, has reportedly informed Cabinet that the decision is wrong and a constitutional coup. Gove has suggested that some judges in lower courts taking a different view somehow undermines the legal reasoning or strength of the decision of the country’s most senior court. One wonders what he learnt during his time as Lord Chancellor. Their camp followers have been quick to insinuate – wrongly – that the judges are acting as politicians and/or trying to stop Brexit. A former Law Lord – Lord Sumption – has succinctly shredded these arguments.

There is much to be taken from the Supreme Court’s decision. It bears careful reading and  reflection on the points made – and not just by lawyers. For now, six points are worth noting:-

  1. The key to good decision-making and good communication is, above all, clarity of thought. Not bumptious self-regard or emotive ranting, politicians please note. The judgment is a model of clear reasoning and crystalline prose, its findings all the more devastating in consequence.
  2. It is vanishingly rare for British judges to describe governmental action as “having such an extreme effect upon the fundamentals of our democracy” (paragraph 58). Ministers might usefully reflect on the facts set out in the judgment which led the Court to use such a phrase.
  3. The Court’s finding that every prerogative power has limits and can be reviewed has very wide application. It is not simply Tory politicians who need to realise that their actions have to comply with the law. Note the reference in paragraph 40 to governments not being able to deprive people of their property without compensation.
  4. A Prime Minister is more than simply a party leader and has an obligation to take their constitutional obligations seriously, including the interests of Parliament (see paragraph 30), a point which – remarkably – the current Tory party seems to have forgotten.
  5. Courts have been exercising a supervisory jurisdiction over the executive for centuries. The Supreme Court was doing nothing new and the idea that this case is so exceptional that it will necessitate US-style confirmation hearings of judges is the sort of nonsense to be expected from the thwarted toddlers who seem to comprise the government.
  6. Revenge is indeed a dish eaten cold. Frozen in the case of Sir John Major who, 26 years after the misery caused by the “bastards” in his party, has finally got his own back. His unchallenged evidence about what it takes to prepare a Queen’s Speech and the effects of prorogation were key to the Court’s decision. Note also how a very English government was sharply reminded of the existence of Scottish law, Scottish courts and that the United Kingdom consists of more than one nation. It was a Scottish court decision which was upheld and an English court which was overruled. The indifference, condescension and incomprehension shown to the Scots over the last three years will have made this particular aspect of the victory sweet.

Let’s leave the Supreme Court for a moment and focus on some other important lawyers: the Attorney-General, the Lord Chancellor, a former Attorney-General, Dominic Grieve, and the current Shadow Brexit Secretary and former DPP, Keir Starmer.

Why no evidence?

A curiosity in the Government’s case was that it failed to provide any evidence at all explaining the rationale for its decision. One explanation is that since its case was that the power was not justiciable, the reasons for exercising it were irrelevant. That was a tenable proposition but a high risk one if, as happened in the Court of Session, the judges decided that motive was a relevant factor. It became even riskier once the Supreme Court looked at the effect of the government’s actions. Did the government failed to provide factual evidence only to avoid undermining the legal argument? Two facts suggest not: (1) the production of the Da Costa memo explaining some of the thinking behind the government’s decision; and (2) the apparent existence of an affidavit in support of the government’s case which no-one felt able to sign, not even the man making the decision. This does suggest some concern about what could honestly be said.  And that is where those communications requested by Grieve and others matter. The government has refused to provide these, giving a variety of spurious excuses for not doing so. But they may now shed some important light on the government’s thinking and, in particular, the issue of what legal advice, if any, the government received. Expect Grieve to follow up on those missing documents.

The Legal Advice

The government has said it had legal advice supporting its decision. Lawyers do disagree about the law and there is no shame in finding that, when challenged, a court comes to a different view. The fact that the government’s legal advice turned out to be incorrect does not necessarily mean that the government deliberately or maliciously sought to behave unlawfully. It is perfectly possible for it to have acted in good faith on the basis of reasonable legal advice. But it is curious that there has now been a leak of what is reported to have been the A-G’s legal advice to Cabinet, advice which one Cabinet member repeatedly asked for but never received. Set aside the political risks of leaking legal advice for partisan purposes (remember the Westland affair?), there are a number of unanswered questions which arise from the little we’ve seen.

  • What legal advice did it seek?  The leaked note only seems to refer to the need to debate Northern Ireland: a very narrow point.
  • When?
  • On what basis?
  • Was it given in written form or only orally?
  • Was it qualified in any way?  Cox’s statement in Parliament about not supporting prorogation over a longer time frame suggests it might have been (and, incidentally, seems to undermine the government’s claim that it had an unfettered power to prorogue).
  • Was it ignored? Or overruled?
  • Why wasn’t it shared with Cabinet?
  • Who was it shared with?
  • Who was involved in drafting it?
  • Why is an extract of a note about it being leaked now and why?

This government may be adopting the same casual approach to getting the legal advice it wants to hear that Blair did before the Iraq war. A previous A-G, Peter Goldsmith, did not exactly cover himself in glory in relation to his advice. Bluntly, he had little experience or knowledge of international law, chose not to involve those who did and was weak. He did his legal reputation no favours. Geoffrey Cox would be well advised to remember that his legal obligations as Attorney-General override his obligations as politician. Keir Starmer has already indicated that he will ask for the legal advice to be made available to Parliament. This may be one of the next Parliamentary battles.

It bears repeating: governments are subject to the law. Saying this is not an impertinence. A judge saying this does not make them political. It is not enough for the Lord Chancellor to send out tweets saying that British judges are the finest in the world. He has a legal duty to protect the judiciary from political interference. He needs to tell the PM and Cabinet that mealy mouthed platitudes accompanied by snide insinuations are not the way this duty is complied with. If you are defeated in court, you accept it with good grace. He has done the bare minimum.  He needs to do much more.

One of Britain’s most important USPs is our law and legal system, its robustness, its impartiality, its transparency, the certainty it provides to those living here. Over a prolonged period, it has sought to exemplify this tenet: “Let no man live uncurbed by law or curbed by tyranny.” (Aeschylus’s The Oresteia). It is one reason why so many contracts involving non-British parties are made subject to English law and the English courts. Even France is setting up in Paris an English law court staffed by English lawyers to attract this work post-Brexit. And yet this week has given us the government throwing a tantrum at being told that it has to comply with the law and our main opposition party cheerfully adopting policies which would destroy the concept of the right to property. They risk destroying one of Britain’s great advantages, one we will need more than ever after Brexit. It is a dismal spectacle.

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