Lots of people are asking what the consequences are of the High Court's holding. It's a good question. THREAD.
Our constitution rests on the foundation that our political class will self-regulate. Peter Hennessy - the constitutional scholar - described this as the 'good chap' theory of the constitution (I've always read the phrase as tongue in cheek although it does sound off these days).
Part of that foundation is that politicians will care - or be caused by those around them to care - when they break the law. This is captured in the Ministerial Code which says that Ministers (including the PM) are expected to adhere to the law.
One of the consequences of the referendum - one of Cummings' legacies - is that politicians realised that, actually, self-regulation wasn't much regulation at all. If they didn't want to care they didn't need to care.
And if they decided they didn't want to care about norms, including adherence to the law, nothing much would happen. It's a bit like when teenagers discover that beyond a stern look parents don't have that much of a stick (sorry to the parents of any teenagers reading this).
You can also see this in the Ministerial Code. It says that the person responsible for ensuring Ministers adhere to the law is the Prime Minister. The notion that Boris Johnson will punish Ministers - that he has will or authority to do so - for breaking the law is for the birds.
But the 'Good Chap' theory is the predicate on which our system of judicial review rests. The notion that the making of a declaration that Government broke the law is a direct legal sanction or deterrent proceeds from that predicate.
But what happens to the law if the predicate is no longer good? I mean, that's just a more sophisticated phrasing of the concern that underlies the question in the opening tweet in this thread.
It's a good question because there is no simple answer. It poses challenges for judges. I have posed it to a sitting High Court judge: whither the rule of law if politicians don't care whether they break it?
And it poses challenges for those, like us, who are trying to ensure Government adheres to the will of Parliament. (The Public Sector Equality Duty - which Boris Johnson and Matt Hancock breached - was a rule laid down by Parliament which is supposedly supreme over Government).
In truth, there has never been a simple binary. The consequences of a declaration are not 'nothing' now and 'profound' once. They have always been context specific. But I think it is true to say that they are dangerously limited now.
Dangerously limited but not nil. There are real life effects. Most of our civil service still lives in a world where compliance with the law is important. Most will try and resist pressure from Ministers to act unlawfully. Judgments like today's strengthen their hand.
We do hear from Government lawyers who write to us wanting to leave because, they tell us, of the collapse in ethical standards in Government that Ministers are now told 'you do know Good Law Project may challenge this, right'? That is a real world effect.
I also use the phrase 'in the domain of criminality' because if Ministers know what the law is and still break it they may well be committing the serious crime of misconduct in public office. Declarations can bring that outcome nearer.
There are also political consequences. A legal finding that a Minister has broken the law should be - and can be - politically damaging. That's why the, I should call them what they are, Government press team masquerading as journalists go after us and me so furiously.
If they discredit me and discredit the finding they reduce the political cost to the Government. It's also why it's such a betrayal of its public service ethos that the BBC refuses to have me on and won't carry, or won't give prominence to, important findings of law breaking.
I'd like to be more optimistic. I'd like to tell you things are fine. I'd like to tell you there is a simple transmission mechanism from legal success to things being better. But there isn't.
The things that are happening in the UK are absolutely textbook signs of a failing democracy. We are a failing democracy. And - because of the complacency embedded in our constitution - we are very badly placed to resist it.
To those who style themselves as progressive but hate me (generally because of @GoodLawProject's defence of trans rights) and so cheer the dishonest attacks of the right, I'd say, be careful what you wish for. Who else is going to do the work we do?
