Forty years of membership of the EU has taught us Brits a lot. Many of us have learned a new language; most of us have learned new recipes for our supper; and our judges have learned how to seize power from democratic institutions.
For there has always been a fundamental cultural clash between us and most EU states – that of law. The UK (though Scotland is slightly different) is a common law country – like Australia, India, Canada, New Zealand and the USA. Most EU states are civil law countries. There are many differences, but the most striking one to ordinary people is the difference in how lawyers are treated. In common law countries, lawyers are the butt of most jokes. We are not well liked, and that has always struck me as fair – the people are sovereign, we merely look after their laws.
In civil law systems lawyers are treated with respect. The judges are revered. They are at the head of their constitution. Before Tony Blair’s experiment of a Supreme Court, our law lords lived in the cramped corridor at the top of Parliament and shared a secretary. They had no clerks to serve them, no luxuriant carpet to delight them and they knew our place was to stay out of politics. It is difficult to see how the new experiment, more alike to our continental cousins, is an improvement.
Today’s decision has shocked and outraged many. Good. In Britain we generally adopt an attitude of ‘if it ain’t broke don’t fix it’. So it is exceedingly useful for an aspect of our system to declare, quite publicly, just how broken it is. The constitution has been broken for some time yet we ignored the signs – the debacle that is the lord chancellor’s ‘abolition’ and the non-entity that is Lords speaker, the ‘Supreme’ Court, the Fixed-Term Parliaments Act, the endless constitutional outrages of the last three years. But above all, the rise of judicial review.
In theory, judicial review is a good thing. In theory it is a way of forcing bad bureaucrats to do their job. The Australians, with remarkable prescience, worried judicial review might be used inappropriately, so they constrained it by act of parliament. We didn’t. I think we clearly should have done. Because judicial review has been used, incrementally, to erode and alter the constitution of our country – without most of us noticing and without any of us being asked. There was a convention that the common law (judge made law) only changed little bits of the law. As of today that convention is dead.
It is because of the incremental changes made by judicial review since the Nineties that the Supreme Court can declare this:
‘Time and again, in a series of cases since the 17th century, the courts have protected Parliamentary sovereignty from threats posed to it by the use of prerogative powers, and in doing so have demonstrated that prerogative powers are limited by the principle of Parliamentary sovereignty…’
What that means is that prorogation can be limited by statute and the courts would enforce that statute. I doubt anyone disputes that. What it does not mean, yet what has happened, is that in the absence of such a statute, the ‘Supreme’ Court can step in and invent one. So lawyers and judges have, step by step, decided to give themselves more and more power.
No one expected them to do what they did today. No one expected it to be unanimous – which perhaps hurts the most. Most of us expected them to say the matter was for Parliament, not for them. As indeed Lady Hale might have noticed from the very scant list of examples she gave in paragraph 44 of her judgment – all examples of constraining prorogation are statutory.
It was a point made in open court when Lord Pannick was questioned, just after the embarrassing issue with the bundles. No example of the court controlling prorogation of parliament can be found in this country – or in any common law country. Until today.
The 11 justices have taken it upon themselves to assume the power of Parliament and by common law, make a statute. That is a far bigger constitutional outrage than Boris sending parliament on holiday over conference season. It is and should be a nationwide klaxon that the experiment of a ‘Supreme’ Court is a failure. They seem conversely oblivious that the actual conclusion to their actions is to carry on the farce of the longest sitting parliament for 400 years and to give all power in the land to the Speaker and rogue MPs – who are unconstrained by manifesto promises, a Queen’s Speech or by fear of an election (because they refuse one). No mention was made of how parliament has ceased to function.
Brexit has exposed huge cracks in our constitution which urgently need fixing. At the very least, we should copy the Australians and constrain judicial review by statute – make it a tool to help ordinary people again. Then we need to decide, openly and publicly, whether we want our old constitution back (the one that worked), or whether, even if we like this new one of all powerful judges and speakers – whether it would be better to do it by statute rather than by common law. That way we might all know the constitution of our land in advance and not have to wait for 11 judges to invent it.
This article was originally published on The Spectator’s UK website.