The prime minister is behaving in a way that was previously inconceivable. Boris Johnson’s decision to prorogue parliament was struck down by the highest court in the land and several further legal challenges are in the works. There is now fear he will attempt to wriggle out of legislation to prevent no deal, prompting further appeals to the courts.
How alarmed should we be? And what might be the role of the courts in the coming weeks? To find out, I sat down with John Dyson, one of Britain’s most respected legal figures. Dyson was on the Supreme Court himself from 2010-2012 and was Master of the Rolls and Head of Civil Justice from 2012-2016, one of our most senior legal posts dating back to the 13th century. Now 76, his latest book A Judge's Journey is a fascinating memoir of his life which also reflects on his time in the judiciary.
When we met in Essex Chambers, Dyson answered my questions with a seriousness in keeping with the gravity of the political situation. Does the prime minister respect the rule of law? “Who knows? He’s such a difficult man to weigh up,” Dyson said, adding “I think he will observe the rule of law. I suspect he will push the boundaries as far as he can.
“There’s a lot of evidence that the thing that drives him really is his ambition, and his desire to win the next election and to be prime minister for as long as he can. That’s just the sense I have, because he’s so all over the place. He’s so inconsistent.” Dyson added: “Who knows whether he knows himself” his next course of action?
The biggest worry now concerns the Benn Act. This law says that if parliament does not approve a Brexit deal, or no deal, by 19th October, Johnson must request an extension to Article 50. The government has given assurances in the courts that the PM will act in accordance with the law. Yet No 10 has aggressively briefed that Johnson will not seek a delay. If the PM refuses to meet his obligation, would the courts forcefully intervene?
“I suspect he will push the boundaries as far as he can”“That is, of course, a possibility,” Dyson said. He told me that Jonathan Sumption, another former Supreme Court justice, was recently asked “a question on whether, if Boris Johnson simply crashed out without a deal in breach of the Benn Act, that would be unlawful, and he said ‘yes it would’—and that’s obviously right. As to what the consequence of that would be, well, he wouldn’t be committing a contempt of court unless the court actually injuncted him beforehand.” As yet the courts have not gone beyond seeking government assurances, but a second hearing is scheduled in the Scottish Appeal Court for 21st October, to assess the situation again and, if necessary, make an immediate order.
“If the courts were persuaded to grant an injunction, and Johnson still nevertheless [refused], then he would be committing a contempt of court for which he could be punished, possibly even sent to prison.”
This is still currently in the realm of the hypothetical. What we do know is that Johnson has already been found to have acted unlawfully once, in his first attempted prorogation of parliament. Dyson had the 24-page judgment in front of him.
Did they get it right? “I have to agree with it. Absolutely… the sovereignty of parliament is undoubtedly a cornerstone of our constitution.” And Johnson sought to trample over that? “I think yes, he did. He did.”
He continued: “they were right to found the reasoning on the basis that they did, namely saying that the effect of what Johnson did would have been to close down parliament for five weeks. That can only be justified on reasonable grounds. And the justification simply wasn’t there.”
The Court of Session in Edinburgh had also ruled against Johnson but its legal tests were different. It was “interesting to contrast the Supreme Court’s judgment with the much more controversial approach that the Scottish court took, which was to actually do it on the basis of challenging Johnson’s bona fides and his motivation. And the Supreme Court very cleverly didn't go down that route. I know that there are those who still think that court should have decided in this way, but if it had actually challenged his motive, particularly without hearing from him, I think that would have been a much more controversial and dangerous line to go down.”
“The sovereignty of parliament is undoubtedly a cornerstone of our constitution”As it is, when you read the Supreme Court judgment you are left thinking, “what’s all the fuss about? And how could anyone have thought otherwise? And that’s the beauty of a really well-reasoned judgment. I think it's a model, and also of course it’s great that they all signed up.” The unanimous verdict was not anticipated by even the most informed legal commentators.
What’s lamentable is that the Supreme Court ever had to make the ruling in the first place. Politics has descended more quickly than many of us thought possible. Previously unthinkable events are coming to pass, facilitated by an unpredictable prime minister and in Labour’s Jeremy Corbyn a lacklustre leader of the opposition. “We've got two leaders who, frankly, when I compare them with the leaders of the two principal parties in years gone by, I just despair.”
Dyson told me that “I'm just so yearning for some stability in the system.” The Supreme Court judgment is “a very important case… But it is important, I think, to bear in mind that as the court said itself, this was a very much a one off. And of course, we have the other Gina Miller case in 2017, which was also a one off! But you know, Brexit has changed the political landscape in a big way. I firmly hope that when all this settles down, we can get back to sort of business as usual, or more like business as usual, anyway.”
John Dyson’s latest book is A Judge’s Journey (Hart)
