The High Court yesterday issued a clarion call reminding the government that it is subject to the rule of law and that it must, like all of us, obey the laws which parliament passes. The governments attitude to this inconvenient principle was made clear by the Attorney General who led in presenting the governments case to the High Court but could not be bothered to go to court to hear the decision. Such disdain, by the governments senior legal advisor, to the three highest judges in the land illustrates clearly how badly we need those judges to save us from politicians and civil servants who, given half a chance, will gladly drive a horse and cart through the law, whenever it suits them. The Attorney Generals insult calls into question whether he is fit to hold such high office.
And the excuse the government would make for being able to do what it wants, legal or not, is the Royal prerogative. The decision of the high court was not based on politics, the case itself was not based on politics. The court was presented purely as a question of law.
The Daily Telegraph has been screaming for two days that the courts should not be involved in “political’ issues of this nature. The sovereignty of Parliament, the rule of law and the use or abuse of theQueen’s prerogative are and never have been “political” issues. They are issues of outstanding constitutional importance because their use by government determines whether we are a democracy or a dictatorship. Their misuse means that a government can do what it likes, lawful or unlawful and if the courts are prevented from interfering, every citizen of this country loses the protection of the law and and is subject to arbitrary decisions which can not be challenged in a court of law.. The government can do what it likes and then justify it by claiming the Queens prerogative.
Laws presented to Parliament are prepared by parliamentary draftsmen, senior lawyers who have the accumulated wisdom of hundreds of years of drafting ours laws and yet they were incapable of drafting correctly the Referendum Act ? I do not believe it for a minute. All doubts about Brexit, if that was to be the result of the referendum, could easily have been resolved by the insertion into the Act of a few simple words saying that the approval of Parliament was or was not needed for the invocation of Article 50 or alternately that it could be dealt with by use of the Queens prerogative.
Whitehall and the establishment have never given their blessing to Brexit either before or after the referendum. In effect it is the establishment in the form of the civil service which presents the governments wishes about the contents of proposed new legislation, to the parliamentary draftsmen. Politicians are neither clever enough nor knowledgeable enough to spot the dangers or consequences of a simple omission, be it deliberate or accidental. Civil servants are.The draftsmen are too experienced and knowledgeable to let a slip like that go through unless they are told to. The Sir Humphreys of this world ensured that on Brexit, parliament would be emasculated by “a slip” which was carefully and deliberately designed to ensure just that.
The outcome of the government’s appeal will decide whether parliament will continue to rule or whether we will be ruled by governments which are not subject to the rule of law, with the courts powerless to intervene in and protect us from government abuse justified, as being done under the royal prerogative..
Sir Thomas More in Robert Bolt’s A Man for All Seasons, aptly said;
“This country is planted thick with laws, from coast to coast, And if you cut them down, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”
And looking at the UK’s present and past leadership, so would I.
Incidentally, after Sir Thomas’ execution, his head was displayed on Traitors Gate for a month, presumably as a result of Henry VIII’s use of his royal prerogative.