Like many nerdy lawyers (and I am one of the nerdiest of the nerdy!), when, really, I should’ve been working, these last few days I could not help but to be glued to the news. Until very recently, who would’ve thought that matters of constitutional law would become so sexy, so divisive, so instructive. For decades – if not centuries to come – A-level politics students will study the Supreme Court’s Judgment on prorogation – 11-0 – against the Government, for it is lays out, in easy-to-read prose, our unwritten constitution, particularly the interplay between the Prime Minister, Cabinet, House of Common, House of Lords, Privy Council and the monarch. This epic, deliciously-written Judgment can be found here.
My video, hastily recorded on the day of the Judgment, is here.
Rather understandably, most of the fall-out from this seismic constitutional event has concentrated on what this means for Brexit, but what seems to have been missed by all the political commentators and constitutional lawyers is that it was only the mega-rich – Gina Miller and Sir John Major – who had the financial firepower to take the Government to task. It is a crystal-clear sign that we are living in an imperfect democracy when it is only the super-rich who could afford such an important legal action – an action which may affect us all. As you may remember, the 2016 Brexit campaign was bankrolled by multi-millionaire Arron Banks. The recent – let’s face it – anti-Brexit legal cases have also been bankrolled by millionaires. I simply don’t think that this is fair on the other 99% of our country.
Of course, Gina Miller has previous: several years ago, Miller sought to Judicial Review (when someone or an organisation challenges a decision of a public body) the Prime Minister’s intention to trigger Article 50 (to leave the European Union) without the approval of Parliament. Unlike in the prorogation case, Gina Miller won in the High Court, which the Government appealed to the UK’s top court – the Supreme Court. And Miller won again – the Judgment is here. Emboldened by those important victories, Miller had the guts to try again with this recent prorogation case.
Until the last few years of financial austerity, when the Ministry of Justice’s budget had been decimated, Legal Aid was more readily available for Judicial Review. Therefore, for the last few years, largely the ability to Judicial Review a public body has become the preserve of the wealthy.
My hope is that regular readers of this blog (around 1600 of you per day) use your democratic privileges – hard-fought for by previous generations – to write to your MPs to highlight the absurdity of this situation. Regardless of your views on Brexit, politics has changed, or have been forced to change, due to the influence wealthy people. Surely all citizens should have had the chance to Judicial Review the Prime Minister’s decision? As this is not the case, some citizens are more equal than others. The ability to ensure – if not to force – public bodies, including the Prime Minister, to adhere to the law is only on the menu of options available to society’s wealthiest.
As a campaigner, via this blog, for the cause of greater Access to Justice, I ask that when you next cast your vote at the ballot box, that you have one eye on the question of – Access to Justice: which party will enhance your ability to access the courts, should you need to? That’s a decision for you to make. As I always say, what is the point in voting for politicians, who create our laws, when the vast majority of people cannot enforce their legal rights due the astronomical legal costs? It cannot be beyond us all to find a better, fairer way of enforcing our legal rights.
P.S. I must admit that I’m envious that I didn’t get to work on the Miller case – on either side. Practising law isn’t always fun, nor do outcomes of cases usually have such wide application. Well done to all the lawyers involved. You have become the British version of Suits! However, on the downside, there’s no way that any new case that they work on will ever be as juicy.