We need your support to keep TheyWorkForYou running and make sure people across the UK can continue to hold their elected representatives to account.

Donate to our crowdfunder

Brexit - Motion to Take Note

Part of the debate – in the House of Lords at 7:57 pm on 2nd October 2019.

Alert me about debates like this

Photo of Lord Robathan Lord Robathan Conservative 7:57 pm, 2nd October 2019

As I was saying, it is a very important measure but, as the noble Baroness knows, the Second Reading is unlikely to proceed to law because we are likely to have a general election. I am not saying that it is not important, but there are not many people down in the House of Commons saying that it is important. The Commons is paralysed. It is a zombie Parliament—a dead Parliament, as the Attorney-General has said. We need a general election.

I am going to look at the judgments that brought us back here. I am not going to talk much about the Supreme Court judgment, although a little, but more about the judgment of 11 September. The Supreme Court talked of precedents, but there is none that I can see, unless we refer to the dictatorial monarchs of the 17th century: the Supreme Court judgment indeed refers to 1611.

On 11 September, the Lord Chief Justice, the noble and learned Lord, Lord Burnett, together with the Master of the Rolls and the President of the Queen’s Bench Division said:

“It is not a matter for the courts”.

I am going to quote extensively from that judgment and from Lord Bingham, who was highly regarded and described as the outstanding lawyer of his generation. The judgment of 11 September said:

“The refusal of the courts to review political questions is well established”.

It quoted Lord Bingham saying:

“The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision”.

In another quote from another case, Lord Bingham said that,

“matters of potentially great importance are left to the judgment … of political leaders (whether and when to seek a dissolution, for instance) …Where constitutional arrangements retain scope for the exercise of political judgement they permit a flexible response to differing and unpredictable events in a way which the application of strict rules would preclude”.

The judgment went on:

“Almost all important decisions made by the Executive have a political hue to them”.

In another case—this was only four years ago—the noble and learned Lord, Lord Neuberger, Lord Sumption and Lord Hodge said:

“The issue was non-justiciable because it was political”.

The judgment went on:

“The Prime Minister’s decision that Parliament should be prorogued at the time and for the duration chosen and the advice given to Her Majesty to do so in the present case were political”.

Surely, we all agree with that. It says in paragraph 64:

“The constitutional arrangements of the United Kingdom have evolved to achieve a balance between the three branches of the state; and the relationship between the Executive and Parliament is governed in part by statute and in part by convention. Standing Orders of both Houses elaborate the procedural relationship between the Executive and Parliament. This is territory into which the courts should be slow indeed to intrude by recognising an expanded concept of Parliamentary Sovereignty”,

and it concludes that,

“the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable in Her Majesty’s courts”.

I do not think anybody would disagree that politics and Parliament are not just paralysed; I fear that we are now despised because of our failure to respect the referendum result. The Supreme Court, I regret to say, has trespassed into politics and that is a very dangerous route down which to go. We have on the one hand three distinguished judges—the Lord Chief Justice et cetera—backed up by Bingham, Sumption and others, who thought that it was dangerous. In what is a febrile, heated and angry atmosphere, many are wondering why—because nobody can understand it —11 distinguished lawyers in the Supreme Court can completely contradict these other three distinguished lawyers beforehand. Some are wondering whether the Supreme Court has become part of an establishment remainer plot. As it happens, I do not think so and believe absolutely in the rule of law but—