In defence of the judges

Any conservative, whether Tory or not, should approve of the judgment delivered by the Supreme Court. This is not a case of judges interfering in politics or making up the law. On the contrary, the eleven sitting members of the Court in delivering their judgment couched in admirably lucid prose declared what the law is and has long been. It is significant that at the outset of their judgment they harked back to the Seventeenth Century, the century of fierce struggles between Crown and Parliament, and said: “As long ago as 1611, the Court held that ‘the King hath no prerogative but that which the law of the land allows him’.” For the King then, read the Government today. True conservatives should, as I say, applaud this statement. I cannot doubt that Enoch Powell would have done so…

The Supreme Court made it clear that it was making no judgement on Brexit, no judgement on the referendum, no judgement on Leave or Remain, no judgement on  no deal” or any deal. These are matters for politics, not the law. Its concern was with the prorogation of Parliament, and whether this was, or was not, lawful. The Supreme Court’s judgment leaves the question of Brexit exactly where it was before the Prime Minister advised Her Majesty to approve prorogation.

The Court was hearing two appeals, one brought by Mrs Miller against the judgment that prorogation was lawful which had been delivered by the High Court in England, the other brought on behalf of the Government by the Advocate-General of Scotland against the judgment of the three senior judges sitting in the Inner House of the Court of Session (Scotland’s highest Civil Court) who ruled that the proroguing of Parliament was unlawful because “it was motivated by the improper purpose of stymying parliamentary scrutiny of the Government and that it and any Prorogue which followed it were unlawful, and thus void and of no effect”.

Scottish conservatives, whatever their political affiliations, were, or should have been, delighted by the employment of the word “stymying”. A stymie was an old golfing term from the days before it was lawful to handle your ball on the putting-green and a player was stymied if he found his route to the hole blocked by his opponent’s ball. The verb “stymie” means to “frustrate, thwart, prevent, block, stop” and the Scottish judges held the Government’ s decision to prorogue was indeed made with the intention to frustrate, thwart, prevent, block and stop parliamentary scrutiny of its actions.

The Supreme Court agreed with the Scottish judgment and rejected the judgment of the High Courts of England and Northern Ireland. More remarkably the eleven judges were all in agreement. There was no dissenting voice. Even more remarkably it declared that “no justification for taking action with such an extreme effect has been put before the Court”.  That’s to say, the Government scarcely defended its case.

It did however plead that the Bill of Rights of 1688 had established that “proceedings in Parliament cannot be impugned or questioned in any court”. (That declaration established what is known as “parliamentary privilege”.) However, the eleven judges made short work of this, declaring that “it is quite clear that prorogation is not a Proceeding in Parliament”, but in effect something done to Parliament. “It is not the core and essential business of Parliament which the Bill of Rights protects. Quite the reverse: it brings that essential business to an end.”

The court therefore concluded that the decision to advise Her Majesty to prorogue Parliament was unlawful because “it had the effect of preventing the ability of Parliament to carry out its constitutional function without reasonable justification.” (Interestingly, and wisely, they contented themselves with the word “effect”, eschewing the more politically contentious “intention”.) The prorogation, being unlawful, was accordingly null and void, and Parliament could resume its sittings when it was pleased to do so.

Any suggestion that the judges have been interfering in politics is nonsensical. Cases were brought before them and they were asked to adjudicate on questions of law. The government’s failure to offer an adequate defence of its actions suggests a recognition that it feared its position was legally weak.

Of course the Court actions have been provoked by politics and were brought by people opposed to the government’s position on Brexit. To this extent one may say that they were political. But so was the prorogation, as the Supreme Court has now judged. The truth is that we are in a very unusual political position, so unusual and so peculiar that one keeps harking back to the Seventeenth Century, a time of fierce disputes between Crown and Parliament.

We have for the first time since the late eighteenth century and the opposition to the American war that developed in 1779-80 a government which cannot command a majority in the House of Commons, but continues to act as if it had one. Its weakness and successive defeats in the Commons led it to embark on a course of action which the Supreme Court has now declared unlawful. The situation has come about and subsequently been exacerbated by the breakdown of party discipline in the two biggest parties which have for so long alternated in Government. Disagreement and distrust are so general that no alternative government can be formed from the majority in the House of Commons opposed to the one in office. Nor can the provisions of the (rightly unpopular) Fixed Term Parliament Act be brought to bear. If a motion of No Confidence in the present government was to be passed, distrust of the Leader of the Opposition is so general that the smaller opposition parties may refuse to support his installation as Prime Minister, even temporarily. Meanwhile he, understandably, refuses to serve under anyone else.

One has the impression that there is no majority for anything in the Commons. This may be the consequence of Brexit and the unpopularity of both the Withdrawal Agreement made by Mrs May and of leaving without a deal, something that the Commons has proscribed. But it is also a consequence of the fraying of party loyalties.

None of this is the fault of the Judges of the Supreme Court who have pronounced on the law. Mr Johnson would not been tempted to do what has been deemed unlawful if he had the support of his party and a majority, however tiny, in the House of Commons. We are accustomed to governments that can get their business through the Commons and, eventually, the Lords, and behave as what Lord Hailsham called “an elected dictatorship”, no matter how small their majority. A majority of one, as Churchill said, is a majority. Now we have a minority government which will not or cannot reach out to other parties or even to rebellious members of its own party – a government without a majority which nevertheless removed the whip from 21 of its elected MPs.

Of course a general election is likely before long, and if either the Conservatives or Labour are returned with a majority, normal service may resume and the government can recover mastery of the Commons. But if there is another hung Parliament, well, government will continue to be difficult until Prime Ministers accept that their power may be limited and their position precarious unless they reach out to other parties. And this is quite likely, for it is not only the present House of Commons which is deeply divided; so, also, it seems, is the country.