Dr Sarah Ingham is a member of Kensington, Chelsea and Fulham Conservative Association.
“We’re not at court to ask the court to jail Boris Johnson.”
Another day, another legal action by Joanna Cherry – this time to require the Prime Minister to comply with the so-called Benn Act and seek an extension to avoid leaving the EU without a deal. Despite her denial, the prospect of the Downing Street One being banged up is probably the only part of the process that most of the electorate can relate to.
‘Justiciable.’ Less than a month ago many voters are likely to have googled or reached for the dictionary to check the exact definition. Thanks to Cherry and more than 70 other MPs dragging judges into the toxic swamp that is politics today, the electorate is now aware it means ‘subject to trial in a court of law’.
In the past few weeks, voters have been subjected to an unexpected crash-course in legalese and constitutional law, as they panted to keep up with a dizzying tour through the UK’s various courts. Judges from Scotland’s Court of Session (both Inner House and Outer House) and England’s High Court all had their say on whether they should have a say on the prorogation.
Finally, the Supreme Court justices unanimously ruled the suspension of Parliament unlawful, to the delight all those involved in the legal challenge to the Government’s decision.
Deservedly triumphant was Cherry, who in late July got the process underway in the Scottish courts. It can be assumed that recourse to the law is the default option for a senior member of the legal profession. And as MP for Edinburgh South West and the SNP’s Justice and Home Affairs spokesman, Cherry’s decision to seek legal remedy north of the border is understandable. It’s her home turf.
By September 4th, however, another 78 people had jumped on the Prorogation legal bandwagon that Joanna Cherry had set in motion, including some 70 MPs. Despite being described by Lady Hale as a ‘cross party group’, none was a Conservative or a member of the DUP. Most were Labour – but few, if any, seem to represent one of its estimated 148 Leave-supporting constituencies.
With Jo Swinson and Plaid’s Liz Saville Roberts on board, the First Cherry Case gathered together many who back the Remain Alliance. In addition to Ms Cherry, 10 were from the SNP’s cohort of 35 MPs, while almost 20 of the Labour MPs represent London seats.
Among the capital’s MPs who sought legal remedy north of the border were Andrew Slaughter and Emma Dent-Coad. As MPs for Hammersmith and for Kensington, both a Number 9 bus ride away from England’s High Court, they bring to mind those soon-to-be ex-wives from overseas who jet into London, the world’s divorce capital for the world’s wealthiest. Why are MPs elected to English constituencies not making their case in English courts?
If the first Cherry Case had truly just been about unraveling a knotty constitutional conundrum rather than trying to stymie the Prime Minister’s Leave strategy, it would have helped the legitimacy optics if it had been genuinely cross party, like Parliamentary Select Committees. It might not have got underway back in July within days of Boris Johnson’s barnstorming inaugural performance as Prime Minister.
It will be instructive to see which other MPs, if any, join the Second Cherry Case. If our elected representatives really want the public to keep faith in a politically neutral judiciary, they have no business involving judges in Brexit, the most contentious of all political issues.
As litigious MPs have sought remedy in the courts in the past month, voters have been reduced to being mere viewers of the latest soap on daytime TV: the Prorogation was Crown Court for political anoraks, or Judge Judy with Lady Hale.
Experts in constitutional law will be kept busy working out the implications of recent judicial meddling, which has torn apart the ancient fabric of Britain’s constitutional arrangements. Meanwhile, when it comes to Parliament and stymying, prorogation isn’t quite in the forefront of the minds of some 17.4 million voters. The prospect of Johnson in Belmarsh is about the only bit of light relief for the electorate, growing increasingly fed up as democracy is denied.
Elected MPs should be the most jealous guardians of that democracy, ever ready to assert the rights of Parliament over the Executive. But they should not be outsourcing the voters’ job to judges. The proper place to call the government to account is not the courts, but the ballot box.