Last week was certainly one for the history books. Eleven judges of the Supreme Court said unanimously and unambiguously that Boris Johnson’s attempt to shut down democracy and silence the voices of the people was unlawful.
Hit with such a damning and categorical judgment, you’d think the Prime Minister and his government might show just a little humility. Boris Johnson should have resigned, to make way for someone who is prepared to follow the law and take a disastrous no-deal Brexit off the table. At the very least, he should have apologised. But no. Boris Johnson, Michael Gove, Jacob Rees-Mogg and Dominic Cummings have decided, based on their combined zero years of legal training and experience, that eleven Supreme Court judges got the law wrong. The sheer arrogance of these men is astonishing.
Disagreeing with the court’s decision – as long as you respect it – doesn’t undermine the rule of law. What does undermine the rule of law are the dangerous threats emanating from No 10 and other Conservative ministers since the judgment. Members of this Conservative government are now suggesting, anonymously, that they will respond to the Supreme Court ruling against them by making political appointments to the court, scrapping the Human Rights Act, and even abolishing the Supreme Court altogether. This is the response of despotism, not democracy.
The rule of law is fundamental to a functioning democracy. Our courts safeguard our individual rights and freedoms. They prevent the government overstepping the bounds of its authority – as Boris Johnson tried to do when he unlawfully shut down democracy this month.
That’s why it’s incredibly disturbing to see the government threatening retaliation against the Supreme Court – by politicising it, weakening it or abolishing it. One of the great strengths of the UK’s judicial system is how unpoliticised it is. Our judges are selected by independent boards without great fanfare or political fights. In fact, three new Supreme Court judges were appointed in July, and hardly anyone noticed. Compare that to the deeply unpleasant partisan battles that erupt whenever a Supreme Court seat becomes vacant in the United States – battles that usually have nothing to do with legal ability. And compare this week’s clear, unanimous judgment to the frequent 5-4 splits in US Supreme Court decisions – along partisan lines – on everything from same-sex marriage and the death penalty to gun control and big money in politics.
This week’s ruling showed our independent judiciary at its best. Conservative ministers threatening the Supreme Court’s independence and existence is authoritarian politics at its worst. While it is clearly not as extreme, it echoes the same anti-democratic impulse we have seen in President Erdogan’s purge of judges in Turkey. More than 4,000 judges have been dismissed or detained as Erdogan has attempted to take political control of the judiciary. He is intimidating the remaining judges to be tougher on his enemies and turn a blind eye to his own government’s human rights abuses.
As I said, the Conservatives have not acted like Erdogan. But you don’t have to arrest or expel judges to undermine judicial independence and the rule of law. You can chip away at it with threats to weaken the courts and abolish key parts of the constitution that enable them to hold the government to account – such as the Human Rights Act. The Human Rights Act had nothing to do with this particular case. But we already know that many Conservatives are looking for any excuse to get rid of it. They tried during coalition, but the Liberal Democrats stopped them. And we’ll stop them again if they try now.
The Human Rights Act protects your rights to a fair trial, to keep your private life private, to marry the person you love – and not to be tortured, discriminated against or forced to work against your will. For the Conservatives to threaten those rights just because they don’t like a court ruling is absurd and outrageous. I can’t quite believe I have to write this, but the government must respect the rule of law, and uphold human rights.
Christine Jardine is the MP for Edinburgh West and Liberal Democrat shadow home secretary.
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