What is Britain’s ultimate sovereign power: Parliament or the Supreme Court?

If you want the judiciary to be independent of politics, they can’t be supreme.

BY Henry Hill | tweet HCH_Hill   /  25 November 2016

Non-lawyers have little to contribute to the specific debate about the Government’s recent High Court defeat on Article 50. This indeed is one of the problems that arises when politics gets dragged into the courts: the dramatic narrowing of the range of people who can have an informed view.

Personally I’m inclined to the views of Karl Gardner, a former Government lawyer, and Adam Tomkins, a Conservative MSP and legal professor, both ardent Remainers who believe the judgement wrong, but that’s in much the same way that a Medieval peasant might have a favoured interpretation of the Latin Bible he couldn’t actually read.

But this hasn’t stopped a lot of people from offering commentary on the subject – nor some lawyers from dressing up political arguments in legal plumage – and from this mass has arisen a very common but entirely incorrect portrait of the point at issue.

In short, many commentators are painting the dispute as one between Parliament and an external force, the Government, which is trying to overrule it. Thus you have a QC, of all people, accusing Theresa May of trying to “overturn the result of the Civil War”, whilst others argue that Brexiteers should celebrate the ruling because, after all, wasn’t Brexit meant to be about the sovereignty of Parliament?

But “Parliament” is not “the House of Commons”. Rather Parliament is comprised of three elements: the Commons, the Lords, and the under-known Crown-in-Parliament. It’s from the Crown-in-Parliament that the much-maligned Royal Prerogative flows. It is a Parliamentary power.

Nor is it an anomalous or anachronistic one, despite the modish musings of some (presumably republican) Remainers. This point was made, in a recent and very relevant speech, by Lady Hale, Deputy President of the Supreme Court, when she directly compares the Royal Prerogative to Malaysia’s “executive power of the Federation”.

Allowing the Cabinet to wield the Royal Prerogative reconciles the need for independent executive powers, a perfectly normal part of democratic government, with the fact that our Government sits in the legislature and is not a discrete institution. It’s just the sort of elegant, excellent-in-practise arrangement our constitution excels at.

The idea that the result of the Civil Wars was the complete demolition of the Crown’s executive powers is in any event totally ahistorical, as any examination of the post-Restoration monarchy amply demonstrates.

Rather it was that the Crown ceased to be an entity separate from and unaccountable to Parliament, but instead became a part of it, after which the exercise of its powers slowly shifted from the actual monarch to the elected Government.

The upshot of all this is that defending the sovereignty of Parliament against external challengers such as the EU doesn’t force one onto any given side in an internal turf war between its component parts, which is what the politics of the prerogative actually is.

Yet there is a tendency in British constitutional politics which keeps the flame of the Royalist cause, and seeks to protect the people from Parliamentary excesses via a separate and supreme authority. The difference is that they don’t want to set a King atop the constitution, but judges. They are the courts’ cavaliers.

If we return to Lady Hale’s lecture she describes Lord Hope, a recently retired Supreme Court judge, arguing that “the courts have a part to play in defining the limits of Parliamentary sovereignty”, and that they should have the power to refuse recognition to legislation which reduced the scope of the courts to oversee the legislature and executive.

His position fits into a broader pattern in which reformers try to give the judiciary greater power to constrain the legislature. Another example would be the European Convention of Human Rights which, thanks to the Human Rights Act, now operates in Britain as a sort of de facto codified constitution, albeit one which cannot be democratically amended by any of its subject peoples. Legislation ruled incompatible with it cannot, in this country, be struck down by the courts but has only been left unmodified on a single occasion.

On the face of it, the idea that we need an independent authority to provide a guarantor of our rights against an over-mighty legislature and the whims of our fellow citizens is a reasonable one. Indeed it was ably made, from the scaffold, by none other than King Charles I:

“…for the people and truly I desire their liberty and freedom as much as any body whomsoever, but I must tell you, that their liberty and their freedom consists in having of Government; those laws, by which their life and their goods may be most of their own. It is not for having share in government…”.

The parallels and attitudes are obviously not exact, but if we strip down His Majesty’s message it would be: it is more fundamental to liberty to have a government that respects your rights than one which reflects your wishes. Lord Hope’s argument could be pared to a very similar core.

Of course, we find the concept of rule by an unaccountable king unpalatable today. But the monarchy merely made obvious something which remains true: that whatever system of government we choose, we are ultimately ruled by people.

To pose the choice as between a Parliament of flawed people and a hallowed body of unchanging rights is to pose it falsely. Laws and institutions can no more govern a nation than can bricks and tools build a house. Nor can sovereignty, which at root means having the final, unchallengeable say, ever be divided or shared. If it does not rest with our elected representatives then it rests not in a document, but simply with a different group of people.

Viewed thus, we see that to have the Supreme Court “defining the limits of Parliamentary sovereignty” is to invite the prospect of placing a hendecumvirate at the apex of our constitution, in our case one neither directly elected nor appointed by those who are (as in the US) but instead selected by the rather arbitrary internal mechanisms of the legal profession – arbitrary because no level of expertise in what the rules are particularly equips one to decide what they ought to be, the burden for deciding which Lord Hope’s limiting vision places on the Court’s shoulders. Law school doesn’t turn out philosopher princes, even if we desired to be ruled by such.

The furore surrounding the High Court’s Article 50 ruling highlights why this matters. The legal establishment has rightly pushed back against the popular rage directed at the judges, and at the suggestion that judicial appointments should be subject to democratic oversight. But this attitude makes perfect sense as long as the judiciary are conceived as umpiring rules made through the political process. Place the courts above and beyond Parliament, and the rationale changes.

On the political dimension of judicial appointments, for example, consider Lord Hope’s view on the sovereignty of Parliament. Lady Hale reports in her speech that the late Lord Bingham disputes his thesis, arguing in his Orwell Prize-winning book The Rule of Law that judges did not invent the sovereignty of Parliament and thus it is not for them to change it. She concludes that: “Fortunately, the issue has not yet been put to the test.”

Yet if it were put to the test, the stakes would be profound: whether Parliament or the Supreme Court was the ultimate sovereign power in our country. This isn’t an empirical question that can be tested and verified. Fundamentally, and despite the cute language of judicial “discovery”, the eleven judges of the Supreme Court would be deciding on the true shape of our constitution.

Whether or not we should be ultimately governed by Parliament or the Supreme Court is a political argument on which anybody can have a legitimate view. If the decision is made in court rather than an explicitly political arena then the introduction of politics into the court is both inevitable and surely just. It’s in my interest, as a Parliamentarian, to seek the elevation of Binghamite judges, and of “Courtists” to promote Hopish ones.

Should the Supreme Court return a Hopish judgement, of course, there is no mechanism for correcting or altering it within the political process because Parliament, our mechanism for political decision making, would have been stripped of its sovereignty by the court, and a non-sovereign Parliament couldn’t return sovereignty to itself by definition.

This has implications for the second post-Article 50 outrage, the whipping up of “mob anger” at the judges in question. In the context of a sovereign Parliament, with the court as subordinate umpire, such behaviour is clearly unjustified. But that isn’t so cleanly the case if Parliament is subordinate to the judges.

One can view the “mob” as an informal, if ugly, attempt to externally exert political pressure on an “apolitical” actor. At present it is obvious that such energies should be directed into our expressly political institutions, which are designed to respond to them, and the targeting of the High Court is improper. But if Parliament were no longer sovereign there would be a ceiling on what could be achieved through politics. A citizen could form a party, make their case to the country, and win an election yet be unable to effect the change they want because it fell beyond the scope of what the judges deemed acceptable.

You might argue that the limits set by the judges would likely be fair and reasonable, or the code they uphold just and good. But the same could be said for the rule of a good king, which nobody would advocate, and we know that the legal establishment don’t like philosophically questionable solutions merely because they work – as Lady Hale said of the Law Lords: “it was recognised that, however well this arrangement had worked in practice, it could not be justified in principle.”

Nor is this problem confined to the relatively narrow issue of sovereignty – more damaging are trends, such as the Human Rights Act, which shift a widening range of decisions out of the political process.

It is very easy to get widespread agreement to a broad statement of rights but not on the detailed application of those rights to day-to-day life. When rights are enshrined in ordinary legislation, their specifics are open to debate and political change. But if they’re drawn instead from an unchallengeable document, let alone some code distilled from the aether by judges, that isn’t the case. Those who dispute a ruling can only bring another case in forlorn hope of a different outcome.

If change can’t be effected via the political elements of the constitution the advocate of change is left with no recourse but to try to exert pressure on the “apolitical” institutions by whatever unofficial means are available. The popular press, and public opprobrium, would be obvious sources of leverage. They certainly beat the Roundhead army and the headsman’s axe.

The idea that our rights are better protected if Parliament is bound by some external force is an old one, but strip it to the core and we see how antithetical it is to both democratic government and judicial independence. Unless you can find some unchallengeable authority beyond mankind to underwrite you – such as the “divine right” monarchs had in God – then people can’t be apolitically governed. If you want the judiciary to be independent of politics, they can’t be supreme.

Our constitutional traditions recognised this. The supremacy of Parliament recognised that power must ultimately be politically contestable, whilst the integration into Parliament of the various branches of Government recognised that no single institution could be trusted to be set up decisively over the others.

Thomas Paine derided a constitution in which each element stood sentinel on the others as an “absurdity”, and the British constitution has continued to irritate those pre-occupied with tidiness and theory ever since. But just as crooked pillars can form a perfectly stable arch, so does fusion of powers answers the question “quis custodiet ipsos custodes?” better than any separate body ever will. Several watchmen, keeping an eye on each other, closes the circle of scrutiny.

Our constitution was settled in the aftermath of the Civil Wars and the Restoration, but by moving the highest court out of Parliament, and subordinating British law to a sweeping external code, we have taken several steps towards the creation of a new challenger to Parliamentary supremacy. The Royalist conceit does live today – its courtiers are simply found in a different sort of court.

Henry Hill is a freelance writer and assistant editor of ConservativeHome. 


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