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The decision by a judge to make Boris Johnson appear in court, in order to face a private prosecution brought over his use of the £350m-a-week figure during the Brexit referendum, is absurd. This scarcely needs stating again.

Various dimensions of the specific case have come under close and critical scrutiny. This post at Barrister Blog (written before the judge’s decision) branded the prosecution an “ill-conceived publicity stunt”.

The author also dismantles the ‘superficially plausible’ idea that Johnson’s statements, even if lies, meet the threshold for misconduct in public office, “serious criminal offence carrying an unlimited fine and potentially life imprisonment.” This view is shared by Francis Hoar, a barrister specialising in constitutional and electoral law, who branded the judgment not only ‘dangerous’ but ‘execrable’. He is confident the case will not see court.

All of this is before you get to Guido Fawkes’ revelations about Marcus Ball, the man behind the prosecution, is lying about his campaign. Or this morning’s story in the Daily Telegraph about how he has spent more than £50,000 of the cash from his fundraiser on such things as a luxury flat for himself.

But the case has a deeper significance, one touched on by historian Robert Saunders (who professes to ‘abhor’ Johnson) in his own Twitter tirade against the case. Dragging the courts into politics to the extent implied by this prosecution risks both stifling free political debate and accelerating a looming confrontation between Parliament and the judiciary over the latter’s constitutional role.

As he argues, politics is unlike other regulated fields because the regulatory function, such as it is, is supposed to be exercised by the electorate. Setting another body up in judgement over politicians, especially politicians on the stump, risks severely tilting the balance of power towards whichever body of opinion controls the levers of that body.

We can already see the iniquity of lawfare in the ongoing fallout over the Electoral Commission’s handling of the 2016 vote. Pro-Remain lawyers are bringing private prosecutions against the regulator left, right, and centre, forcing it to revisit judgements favourable to the Leave side and having no little success in getting them overturned.

By contrast, there is no pro-Brexit body bringing similar prosecutions against rulings favourable to Remain groups. This means that even though there are no grounds for supposing that those rulings are any more soundly based than the pro-Leave rulings – and some seem decidedly dodgy – they are left to stand. The de facto result is that the two sides are subject to different regulatory regimes, one decidedly more rigorous than the other.

(And all of this is before we even touch on what the judicialisation of politics has done to the United States!)

Hopefully a wiser judge will throw out the prosecution against Johnson. But the story highlights again how important it is that the Government gets to grips with British electoral law – and that Brexiteers face up to the scale of the lawfare being waged against them, and fight back.

293 comments for: Johnson’s prosecution is just the latest push in a long campaign of Remainer lawfare

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