A politicized court rules against an elected government. Leftists cheer and whoop and post admiring profiles of the judges who agreed with them. Conservatives complain that the judiciary is overstepping its authority and ruling on the basis of what it thinks the law ought to say rather than what it actually says.
American readers might be familiar with this scenario, but not the Brits. When our Supreme Court declared that Prime Minister Boris Johnson had behaved improperly by advising the queen to prorogue Parliament — that is, to suspend prior to a new session, normally a standard procedure — it tore up our constitutional settlement as it had existed for 330 years.
You didn’t know that the United Kingdom had a Supreme Court? Neither, until this week, did most Brits. That body was created in a characteristically slapdash way by Tony Blair, from no higher motive than wanting to look modern.
Unlike its American cousin, the British Supreme Court is not interpreting a written constitution. It is there, at least in theory, to uphold a system based on the supremacy of Parliament. Our 1689 Bill of Rights, large chunks of which were cut and pasted by James Madison when he drafted the American version, differs from yours chiefly in that it elevates Parliament over the judiciary, laying down that “proceedings in Parliament ought not to be impeached or questioned in any court.”
That sounds pretty clear-cut, doesn’t it? But, this week, the judges got around it by claiming that “the prorogation is not a proceeding in Parliament. It takes place in the House of Lords chamber in the presence of members of both Houses, but it is not their decision.” Hmm. So the prorogation happens in Parliament, but somehow or other, it isn’t in Parliament. Whatever you say, M’Luds.
A prorogation normally happens every year. But Theresa May was reluctant to hold a new legislative session because she feared that MPs would take the opportunity to vote against her agenda and thus precipitate her departure. The current session became the longest since the appropriately named Long Parliament, which sat for 13 continuous years until 1653.
Johnson and his supporters argue that the prorogation was overdue and point out that, until he took over, the opposition had been demanding one. His detractors say that his real motive was to reduce the amount of time that MPs had to pass resolutions that weakened his negotiating position in Brussels. But here’s the point: Whichever side is right, it is plainly a political rather than a legal question.
Even 10 years ago, such a case could not have come to court. No law existed, so no law could have been broken. That, indeed, was also the view of every senior judge this time until the Supreme Court decided otherwise.
Were the 11 Supreme Court justices biased against a Euroskeptic prime minister? Obviously, I have no way of knowing. But I can say with certainty that the legal profession as a whole is pro-Brussels. I know it because just days after the referendum, more than a thousand barristers signed a letter telling MPs not to implement its result. Although the judges kept emphasizing that they were only concerned about the technicalities of the prorogation and not about Brexit, the case had been brought by anti-Brexit campaigners who rejoiced when the result was declared.
We now have the worst of all worlds: judges who are political but not accountable. There are two ways we can go as a country. Either we can return to the notion of parliamentary supremacy, perhaps by limiting the use of judicial review by statute, as Australia does, or we can go the whole hog, totus porcus, and adopt a written constitution which formalizes the division of power.
If I thought we would end up with a constitution such as yours, I’d be tempted by the second option, but the peculiar emphasis on individual freedom that sustains that document was a product of the 18th century. I doubt whether the Bill of Rights would get through your Congress today, and I can’t see our House of Commons approving anything remotely like it.
In their determination to stop Brexit, the British Establishment has ripped aside norms, violated precedent, and politicized previously impartial bodies — all in order to overturn a referendum result that MPs had solemnly promised to uphold.
When Oliver Cromwell finally sent the Long Parliament packing in 1653, he used words that seem eerily apt today. “You were deputed here by the people to get grievances redressed, are yourselves become the greatest grievance.”
Yup. Sooner or later, the people will have their say.
