Boris Johnson is using the conventions of British public life to destroy the British constitution. He is relying on the old understanding that good chaps don’t ‘go too far’ while ‘going all the way’ himself. He is counting on the judges being frightened of challenging him, while showing no fear as he tramps over and tramps down the lines that once marked the separation of powers.
Johnson breaks the rules while insisting that everyone else must obey them. He’s like a criminal who cries with outrage when the police do not follow their procedure to the letter, and the judges should find the courage to treat him as such.
In his message to the Supreme Court, Sir James Eadie QC, the first treasury counsel, said Johnson’s decision to suspend Parliament for five weeks was ‘high policy’ that was no one else’s business. The judges had no jurisdiction ‘to enforce political conventions’, Boris Johnson and Lord Keen of Elie, the advocate-general for Scotland, said in a submission to the Court. These ‘matters are determined within the political world’.
Johnson can break conventions, in other words, and the judges cannot stop him. Put like this, the case against his double standards seems obvious. But notice how clever his appeal to the old standards of public life is. We don’t have American judges who act as unelected politicians. Nor I think do most people want them.
Conservative peer Daniel Finkelstein speaks for many when he says in the Times today we are in danger of supplanting democracy with a judgocracy. He quotes with approval former Supreme Court justice Jonathan Sumption, who argued in this year’s Reith Lectures that we have always been a parliamentary democracy. The representatives of the people decide. The judges cannot intervene.
Finkelstein didn’t mention it, but Sumption went further. He delivered a bracing attack on the complacent belief that politics can be hollowed out with impunity, and the electorate has no power to limit human rights acts or conventions without the authority of courts of law.