THE historic usurpation of the prerogatives of the executive by the judiciary vandalises the British constitution and tramples over the Bill of Rights that expressly prohibits the interfering of the courts in the proceedings of Parliament.
Unable to see past their prejudices on a single issue, Brexit, the justices have fundamentally altered the time-tested balance of powers in the British constitution.
Expect many more political decisions now to be brought before the courts, and unaccountable judges to make political decisions that should be made by those who face the voters.
The justices have unanimously ruled that the prorogation was unlawful. But under what law? Law is made by Parliament. And Parliament has never made any law that limits the use of the prerogative to prorogue Parliament that applies in this case, whether on grounds of reason or effect. As the High Court explained in its earlier decision, which the Supreme Court has now overruled, ‘parliamentary sovereignty’ does not permit or require the courts ‘to exercise hitherto unidentified power over the Executive branch of the state in its dealings with Parliament’.
The Supreme Court claims: ‘For present purposes, the relevant limit on the power to prorogue is this: that a decision to prorogue (or advise the monarch to prorogue) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive.’
This principle has been created out of whole cloth – notice that it cites no authority, and says ‘will be’ unlawful rather than ‘is’. As Robert Peston notes: ‘There is no precedent for the Supreme Court finding that a PM acted unlawfully when advising the serving monarch. There is no precedent for the Supreme Court ruling that an order in the Privy Council to prorogue parliament is null and void.‘
Parliament has been prorogued on many occasions in the past for longer than this without legal challenge. The judgment implies that the executive must always be subject to Parliamentary ‘supervision’, but that again is simply a made-up idea. Parliament passes laws, government governs – and can do so while Parliament is not in session. If Parliament doesn’t like the way the government is exercising its lawful powers then it can vote it down. It may not usurp those powers for itself, which is what it is currently doing – with the connivance of a Speaker who has abused his position falsely to certify that a crucial Bill opposed by the government did not require Queen’s Consent or a money resolution. Yet these plainly false judgements stand, being apparently beyond judicial review, while the lawful discretion of the government is unilaterally curbed by an activist court.
Contrary to the earlier ruling of the High Court that held the matter was not justiciable, the Supreme Court justices say they have the power to judge whether the prorogation had ‘the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification’. They say: ‘No justification for taking action with such an extreme effect has been put before the court’ – presuming that the government must justify its lawful discretionary actions to judges, who were elected by no one and cannot be removed by voters.
Countering the government’s appeal to the Bill of Rights, the judgment states: ‘It is quite clear 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. It is something which has been imposed upon them from outside. It is not something on which members can speak or vote. It is not the core or essential business of Parliament which the Bill of Rights protects. Quite the reverse: it brings that core or essential business to an end.’ This makes the basic mistake of seeing ‘Parliament’ as the House of Commons and Lords by themselves and not in conjunction with the executive, the Crown, which is the only sense in which Parliament in this country has ‘sovereignty’. As Parliament’s own website explains: ‘Along with the House of Commons and the House of Lords, the Crown is an integral part of the institution of Parliament . . . [Parliament is] made up of the House of Commons, House of Lords and the Queen (who is the UK’s current hereditary monarch).‘
The point is to protect the political sphere from undue intervention by courts, and courts from undue politicisation – a point apparently wholly lost on our new political judicial guardians.
The Supreme Court has just arrogated to itself the power to make constitutional law, establishing by its own authority that lawful political decisions must be justified to judges or be overturned. The government would be well within its rights to ignore this ruling – though it’s clear it won’t. Or simply to prorogue Parliament again, as ministers have suggested is likely, though presumably for less time.
The court’s power should be curbed back to its historic limits by government legislation as soon as there is realistic opportunity – a reminder to these over-mighty judges of what Parliamentary sovereignty is actually about.