Juliet Samuel

What if the real destroyer of democratic norms, the real, dangerous insurgent, isn’t the Prime Minister, but the court itself?

It’s hard to reach any other conclusion after reading a damning critique of the judgment, written by John Finnis, the Australian legal philosopher, and published today by Policy Exchange. Finnis - who counts Supreme Court justices from Australia to the US among his former pupils - unpicks the judgment in 14 bleak pages, in which he explains that it is “through and through political”, a “usurpation” of supreme constitutional power and an act of irreversible damage to the rule of law.

One of the most essential qualities of British justice – a factor that has made it admired and exported throughout the world – is that the judiciary is protected from political entanglements. In this country, this has always been achieved by the convention that certain government and parliamentary activities are not subject to judicial review – they are, in the lingo, not “justiciable”. The courts can interpret the law as it affects rights or administrative matters, but should not issue decrees on the highest principles of our constitution.

This does not mean that the Crown or politicians are left to wield unfettered power. Instead, over the centuries, a varied set of rules has grown up to set limits on them. A government that has lost too much support in Parliament can be ousted by a vote of no confidence. A government that attempts to govern without Parliament will find that it has no way of raising revenues and no ability to pass laws.

Equally, our constitution recognises that governments do have some legitimate powers at their disposal, which they can deploy without fear of judicial interference. That is because citizens have the ultimate recourse if they don’t like what their government is doing: they can vote it out of office. Any government that hasn’t been voted out must be allowed to govern, or else the nation is deprived of its highest political functions.

From these lofty ideals, let us return to the court. The first clue as to the unsoundness of its judgment is that, just five years ago, it reached exactly the opposite conclusion on a crucial principle. The Crown’s power to prorogue has always been treated “a proceeding in Parliament” – a category of power explicitly protected from judicial interference by the 1689 Bill of Rights. In 2014, the Supreme Court itself ruled that the Crown’s actions in Parliament were sacrosanct and “cannot be questioned”.

Yet, this week, it ruled the opposite. The Crown’s officers in Parliament, it argued, can hardly be considered “the core and essential business of Parliament” because they are just doing what they’re told. They can therefore be exempted from a convention that has existed, for the very good purpose of protecting the courts from politics, for three hundred years.

This alone was not enough to grant the court license to interfere in government business, however. In order to justify their meddling further , the judges engaged in another act of legal ingenuity. They claimed that rather than making a value judgment about the Prime Minister’s use of prerogative power, all they were doing was defining the proper limit of that power. As Finnis points out, this is a weasel-worded distinction that falls apart as soon as it is scrutinised. It is a thin disguise for an unprecedented seizure of constitutional power.

Yet the court argued that its intervention was necessary, because the country would otherwise have no protection from arbitrary government. This oddly ignores the ample existing protections, mentioned above: the government needs parliament to pass laws, raise taxes and, fundamentally, because if MPs withdraw their confidence, the government ceases to exist. If they are too cowardly to do so, that is hardly a legal matter. Yet apparently, all of these substantial checks on the Crown’s power, which have worked well for several centuries, are insufficient.

What, then, is the evidence that they are so insufficient? Well, the judges contended that this is shown not only by the five-week duration of the prorogation (how long would be alright, it does not say) but also by its “extreme effect” in these “exceptional circumstances”.

But what exactly is “extreme” and “exceptional” about our situation in legal terms? The judgment claims that we are about to undergo an enormous constitutional change at the end of October. But this is actually incorrect. In fact, Parliament itself has not only already passed all the laws necessary to take us out of the EU; it has even passed a law requiring the government to delay our departure.

What the judges really mean is that we are heading towards a major economic and political dislocation. Reasonable people can disagree over whether this will be “extreme” or “exceptional”, but one thing is clear: that assessment is not a legal question. It is political.

There is a good reason why, for several centuries, the fundamental principles of our constitution have not been subject to the courts in the way that administrative matters like health and safety law are. Judges are not elected and they are not accountable to voters. They have no democratic right to redefine relations between our highest political institutions at the stroke of a pen. They have no right to throw us into a constitutional void in such a slapdash manner, with so little regard for the sweeping consequences.

Our judges are there to be fair-minded interpreters, and not authors, of the law. For hundreds of years, they have understood their role and exercised proper restraint in sticking to it. This is what has earned British justice its reputation for impartiality and integrity across the world. This is why people engaged in legal battles seek out jurisdictions whose courts are modelled on our own. This is what gives the public faith in the rule of law.

All of that is now at risk. And for the sake of what? A dead parliament, drowning in bad faith and narcissistic posturing.

https://www.telegraph.co.uk/politics...supreme-power/


I don't care if this parliament sits for an extra few days, but I am concerned at what the Supreme Court has done. They crossed a fundamental line, apparently for political reasons, and cannot easily turn back. This could be the most pernicious legacy of the whole Brexit imbroglio.