10 January 2020

rule of law

I note there is an article at Policy Exchange by John Finnis, Oxford professor emeritus of Law and Legal Philosophy, arguing that the Supreme Court's annulment of Boris Johnson's prorogation was "wholly unjustified by law" and that it has caused "damage [...] to our constitutional doctrine and settlement."
[The judgment] ignores most of the immediately relevant statutory and political constraints and contextualising factors, and illustrates the ineptitude of judicial forays into high politics.
The Times's former legal editor, Frances Gibb, points out that Supreme Court President Baroness Hale "has left a web from which judges must now disentangle themselves". The government is apparently considering "greater political oversight of judicial appointments to curb 'activist rulings'."
Lady Hale insists that judges do not overstep the mark. They only look at the legality of actions by ministers, she says, and not the underlying reasons. But the very lack of a cited reason, "let alone a good reason", was central to the justices' ruling on the suspension of parliament.
It would be unfortunate if an undesirable intrusion of politics into Supreme Court logic results in the Court becoming more answerable to politicians.
   The rule of law requires that governments can be held accountable to the law. It also requires that the law not be applied arbitrarily: sticking to the letter as far as possible, minimising scope for discretionary interpretation, and not looking at intention unless this is explicitly called for. It is only an ideal of course, but it's an important one.