A Slippery Political-Legal Slope

The Inner House of the Scottish Court of Session embarked upon a slippery political-legal slope today when it unanimously overturned a decision of the Outer House and held that in advising the Sovereign to prorogue parliament, Prime Minister Johnson’s decision was not only justiciable but also unlawful.

The decision was all the more remarkable because only a few days ago a unanimous and very strong Divisional Court of the High Court in London held the opposite:  that Johnson’s decision was political and that it was not for the courts to interfere.  The Divisional Court was not sitting in an appellate capacity like the Court of Session, but so strong was its composition (with the Lord Chief Justice presiding) that another day it could have been the Court of Appeal.

One would at least have hoped that the Scottish court would have paid due respect to the perceived reasoning of the English court (the written reasons not yet being available), but in any event there are now twin appeals in the two cases heading towards the United Kingdom Supreme Court for hearing next week.  We can expect to see a larger than usual panel of justices assembling to decide this grave constitutional issue with judges from Scotland, Wales and Northern Ireland sitting alongside their English colleagues.

A slippery political-legal slope comes about not because decisions of politicians are not justiciable in any circumstances.  Indeed, they are.  On occasions ministers of the Crown need to be called to account and their decisions judicially reviewed because they are said to be irrational or otherwise ultra-vires.

But it is respectfully suggested that the decision to prorogue parliament in this case is not one which may properly be called irrational or ultra-vires.  On the contrary, it is a nakedly political decision and not a legal one.  The Scottish appeal court addressed the wrong issue when it categorised the prime minister’s decision as substantially influenced by a wholly extraneous and improper consideration.  So what?  That is the nature of politics.  It is what politicians do and, depending upon your point of view, that is what a lot of the electorate believe they should do.  We do not have to agree with them.  We may hate what they are doing.  But politicians are there to make political decisions.  We vote them into office to do precisely that, and if we do not like it we vote them out again.

It is not so much a question of justiciability as judges going where angels should fear to tread.  A slippery political-legal slope becomes even more slippery when the electorate perceives, rightly or wrongly, that the courts are interfering with the decisions of their elected representatives.  It is a fine line and one to tread with great care.

The Lord Chancellor is reported as saying that we have a judiciary which is widely respected the world over.  So it is, and may it be confirmed next week when the Supreme Court of the United Kingdom corrects the errant decision of the Inner House of the Court of Session, and confirms the decision of the English Divisional Court.