The three-day hearing to resolve contradictory judgments made by Scottish and English courts (on the Prime Minister’s decision to prorogue Parliament for five weeks) started yesterday. Here, Nicola Mead-Batten gives a marvellous interpretation of what’s happening.
And so, the latest instalment of ‘Brexit: The Franchise’ has begun. It’s the sort of character and plot trilogy Marvel could only dream of.
In the Terminator trilogy, a cyborg assassin (who later became a politician – the actor, not the cyborg) is sent 45 years back in time to kill the mother of the unborn saviour of humanity – fighting against the current leader of the human resistance, Kyle Reese, along the way. Boris might be thinking he wishes he had a time machine to travel back 45 years to prevent the UK joining a single economic union in the first place. The time frame certainly has a neat symmetry about it.
Day one teed things up nicely. Lord Pannick (LP) took centre stage, arguing on behalf of the campaigner and businesswoman Gina Miller in her appeal against the English ruling. His first attack was to try to flip the script. By drawing the battle lines at justiciability – deciding that the case wasn’t a matter for the court – the English High Court left it to politics, seemingly stopping the battle before it even started.
With a laser gun of precision through the argument, LP’s effective response was to implore: “You, mighty Supreme Court Justices of the Realm, have a duty to take those points!”. Empire Magazine said of the first Terminator movie that it “changed the world far beyond cinema”. The same may be true of this case.
If the Supreme Court Justices bite the bullet and delve into the constitutionality of the Prime Minister’s decision, they would be taking an almighty stance in the context of public and administrative law as we currently know it. If they don’t, LP advances, they could be re-opening the wounds of Mount Doom (OK, it’s difficult to talk trilogies without talking Lord of the Rings…) and tempting the future Sauron’s lust for power and domination – allowing him/her to prorogue Parliament for six or even 12 months. Imagine the mischief which might be caused in the process!
The fact of prorogation is not the issue – the exceptional length of time is. It points to improper motive. In the Prime Minister’s own words: “The best way to [leave with a deal] is if our friends and partners over the Channel don’t think that Brexit can be somehow blocked by Parliament”. Build a castle around your objective, and history shows us it’s often impossible to penetrate. The picture painted by LP exposes Boris’ determination to protect his “precious Brexit”.
But it’s not like trilogy villains or even heroes to keep silent. And that, implored LP, was exactly what Mr Johnson has decided to do in this case. No witness statement, not even one from his aides or deputies. Instead, we have little more than introductory text by a government lawyer.
Judicial review specialists know it is rare for a minister to provide a statement when his or her own decision is challenged. But LP laboured the point here to underline that, if the Prime Minister had done, he would have been dragged before the Court and would have struggled to provide a cogent explanation for Parliament’s inordinately lengthy holiday without perjuring himself. Although it would have been quite the spectacle: a thoroughly worthy cliff-hanging end of part.
Now to Day 2, a day which has already started with Gina Millar being painted as the villain of the piece by some observers and protesters…