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Judges are fighting back against Boris Johnson - and they're right

<span>Photograph: Aaron Chown/PA</span>
Photograph: Aaron Chown/PA

Boris Johnson is said to be bad at making friends, but he is good at making enemies. This week he has added judges and bishops to his lengthening list. The departing and longest-serving supreme court justice, Lord Kerr, has condemned the prime minister’s persistent abuse of the judiciary as “unbridled power” and a “slippery slope to dictatorship”. This comes on top of a statement from the leaders of the UK’s Anglican churches deploring Johnson’s admission of law-breaking over Brexit as a “disastrous precedent”. Such a breach of political protocol by the church is most unusual.

There is something to be said for abrasion within the British establishment. The constitution is devoid of formal checks and the relationship of the church and the law to government should never be too comfortable. The civil service, another of Johnson’s new-found enemies, needs to be obedient. Apart from that, the media should not stand alone as sole constraint on the executive.

Judges are a serious matter. Johnson has appeared to delight in infuriating them, perhaps in response to how the supreme court humiliated him on his failure to recall parliament last year. He sees judges as leading the field in enforcing European human rights laws and in monitoring action against immigrants. This has provoked the government into promising new curbs on judicial review of the executive. Such curbs would clearly restrict common law rights under which citizens can ask judges to monitor ministerial decisions as fair, impartial – and legal. This monitoring is about to be sorely tested in Johnson’s centralisation of local planning permissions, removing one of the last shreds of local democratic choice in British government.

Lord Kerr does not come across as a ferocious “lefty human rights activist lawyer”, as described by the prime minister and home secretary Priti Patel. His 11 years on the bench have been comparatively quiescent. Now he is joining his colleagues Lord Neuberger and Lord Sumption in warning variously against the government’s internal markets bill and its coronavirus lockdown regulations. Kerr is asserting the court’s role not in impeding the laws of parliament but in vetting their operation. He insists that the legal framework within which decisions are implemented – whether on immigration, trade or planning – must be challengeable. Ministers “may be irritated by challenges that may appear frivolous or misconceived”, but irritation is not the point. When a law breaks an international treaty it gives “access to unbridled power”.

In its impact on Northern Ireland the proposed internal market bill clearly breaks last year’s Brexit treaty. This is excused by Johnson as merely a “backstop” in the event of no-deal Brexit. A first-year law student could see that is no excuse at all. With no deal now clearly on the table, we have a Downing Street pledge of an illegal act. Calling such antics to account is precisely what judges are for. Lord Kerr is correct.

• Simon Jenkins is a Guardian columnist