In a week where Remain MPs have been trying to foist an extension of the Article 50 period onto Boris Johnson, you might be forgiven for thinking that it is Parliament that has provided the arena for the latest battle in the Brexit war.
But, if a group of legal campaigners have their way, it will be in the Scottish Courts that the real action takes place. The Good Law Project – the brainchild of tax barrister Jolyon Maugham – has been arguing in the Scottish Court of Session today that it’s illegal for Parliament to be prorogued by the PM. Irrespective of the outcome, it’s likely that the matter will be argued all the way to the Supreme Court.
Those behind the prorogation case, (modestly named by one of its petitioners, the SNP MP (and QC) Joanna Cherry, as the 'Cherry case') want to stop Brexit. So, while the minutiae of the judgment will doubtless be used to enliven dinner party conversation for academic and constitutional lawyers for weeks or months to come (I’m washing my hair that evening), the real test for this sort of litigation is whether it actually changes the political outcome of Brexit.
The problem is that legal cases are a blunt instrument, lacking in the subtlety needed to deal with political realities. Court proceedings will inevitably be outpaced by the fast-moving nature of political events, and they can’t react or adapt to political manoeuvring. In deciding great political issues, what matters is public opinion and political will, which set the boundaries of what can and can’t be achieved.
The best example of this comes from the Miller case, in which Gina Miller successfully argued that the government could not give notice under Article 50 without Parliament enacting new, primary legislation. The case transfixed the nation and, at a time when countless other litigants were waiting for their day in Court, vast amounts of judicial time and court resources were spent on the case, with no fewer than 11 Supreme Court judges deciding the issue in Miller’s favour (by a majority of 8-3).
Miller was right on the law, but she was wrong on the politics. Yes, thanks to her, Parliament had to legislate for the exercise of Article 50, but this mattered not a jot when there was cross-party political support for pulling the trigger anyway. The Miller case led to a vote in which 494 MPs personally endorsed the exercise of Article 50 - a majority of 372. Miller served only to legitimise the decision to start the Article 50 process in the first place.
Imagine, instead, if the button had been pressed by Theresa May without Parliament's backing. Remainers would now be able to argue that the whole process was illegitimate: a decision made by a discredited ex-PM, without authority. But, thanks to Miller, the Article 50 process is unimpeachable.
So that brings us to the Cherry case, which – despite the obvious sincerity and good intentions of Maugham, who is much respected as a barrister – shows the same political naivety.
When the case was brought, Remainers were seeking to neutralise the threat of Boris proroguing Parliament over the October 31st withdrawal deadline. But events have moved on rapidly. The upcoming prorogation which ends on 14 October, both before the Brexit deadline and immediately prior to a Queen’s Speech, leaves the petitioners arguing on much more difficult territory, and with less purpose.
More fundamentally, though, the case runs the risk of undermining the Remainers’ own case – much like in Miller. If the Court finds that prorogation is legal, this will endorse Boris’s actions, and could possibly even help him to prorogue Parliament over October 31st itself. Compare this to a scenario in which there’s no court action at all: the prospect of a rump House of Commons combined with widespread protests on the streets, would surely have provided the overwhelming political pressure to prevent Boris proroguing parliament over 31 October. Instead, Boris might simply be able to point to the Court's decision as his defence.
As this week’s debates in Westminster have shown, if there is sufficient political will, then Remainers can and will succeed in disrupting Brexit without the help of the courts. Even in the Wightman case, the most successful Good Law Project lawsuit – in which the ECJ held that Article 50 is revocable – little was added to the political reality: the EU would clearly allow Britain to stay, if it wished to, irrespective of what the Court said.
All of this legal skirmishing comes at a substantial cost. Firstly, there’s the money. In surprising news to nobody, lawyers like to be paid. The Good Law project is aiming to raise £200,000 to fight the Cherry case, and the government’s own costs are likely to be vast. Most of these can’t be recovered even if the government wins, meaning that, either way, the tab will be picked up by the taxpayer. Huge amounts of court time will also have been diverted to deal with the hearings, skittling other cases out of the way.
There is also a much more worrying, long-term impact from the constant drip of political cases. The British judiciary is commendably impartial, deciding cases on the legal merits rather than the political rights and wrongs, in marked contrast to the United States Supreme Court. But when judges are frequently being called on to effectively step into politics, inevitably this will (wrongly) chip away at that reputation for impartiality. The infamous 'Enemies of the People' headline in the Daily Mail during the Miller case was just a taster of how these sorts of cases put judges in the firing line. The longer-term impact on the rule of law undermining the public’s view of the judiciary should not be ignored.
Only time will tell whether the Cherry case succeeds in terms of its legal arguments. But even if it does, the bigger question for its petitioners – and those who invested their money in the crowdfunder – will be whether the legal battle will make any difference to the all-out Brexit political war. They may well find that law and politics lead to very different results.