Supreme irresponsibility and judicial activism deprives Britain of a government

Do not be surprised if you switch on your television on 25 December and find the traditional Christmas message to the nation being delivered by Lady Hale, president of the Supreme Court. Having expelled the Queen from her constitutional role, why should she not go the whole hog and take over her other functions too?

The decision handed down by the Supreme Court on 24 September 2019 was as revolutionary as any measure in 1688 and will be recognized as such by future historians. It is a longstanding convention that judges are not criticized for their decisions on the bench, since their impartiality is assumed and respected.

But when judges aggressively intrude into the political arena, usurp jurisdiction where they have never enjoyed any before and get down and dirty with the politicians, that convention inevitably lapses. The Supreme Court has elected to become as partisan a political actor as the Liberal Democrat Party, the People’s Vote campaign and every other pro-elite contender in the war against Brexit.

The enemies of the people have struck again: that is how this disgraceful decision will be seen by pro-Brexit voters. The concerning aspect is that, on this occasion, it is difficult for any objective observer to see it in any other way. It is an axiom of UK constitutional law that the royal prerogative, in its essentials, is non-justiciable. There have always been fringe areas of prerogative, when they impinged on the rights of individuals or institutions, that legitimately came within the jurisdiction of the courts; but those instances were peripheral.

That the prerogative right of prorogation of parliament is subject to judicial review is a revolutionary doctrine. In that respect, where the Supreme Court abused the constitution was not in its eventual verdict but in its usurpation of power in determining to hear the case. Even had it found in favour of the government it would have been exceeding its legitimate powers. This mission creep – or rather leap – was facilitated by the controversial decision of the Inner House of the Scottish Court of Session in condemning the prorogation.

Scottish constitutional law is significantly more radical than English, due to conflicting implementations of the Revolution Settlement in 1689. In England parliament maintained the pretence that James II had abdicated or “deserted” the throne, a device designed to salvage sufficient of the royal prerogative to induce William of Orange to take the crown, without feeling he had left the post of Stadtholder in Holland to assume a similarly unsatisfactory position in Britain.

In Scotland, the Estates, as illegally as the proceedings in England, constituted themselves a “Convention” to dispose of the crown. They bolstered themselves with some protective legislation before, on 16 March 1689, allowing the reading of the letter to them from James VII recalling them to their allegiance. The “abdicated” king had written the letter on board the Saint Michael, the ship taking him to Ireland, where he still ruled both de facto and de jure, to fight for his crown.

The Scottish Convention then passed the Claim of Right, arbitrarily depriving James of the throne and offering it to William. This brutal act of deposition, without the constitutional fictions observed in England, had the effect of hugely enhancing the power of the Scottish parliament and marginalizing the royal prerogative. That is the tradition from which the decision of the Inner House derived, though their lordships were at pains to insist their judgement was unrelated to the Claim of Right – which is about as plausible as suggesting any constitutional decision by an English court bears no relation to the Bill of Rights.

In crude terms, the Supreme Court, an invention of Tony Blair on an American/European model designed to slough off British judicial tradition and give un-bewigged expression to the culture of this “young country”, was determined not to be outflanked in radicalism by a bunch of Jocks swilling claret in Edinburgh’s New Town. They rose to the challenge and joined in the shredding of our intricate and fragile constitution with as much abandon as their first begetter, Blair.

The Supreme Court decision has one merit: it is crystal clear and uncomplicated. The summary, as read out by Lady Hale, was a straightforward endorsement of the entire Gina Miller/John Major claim, without cavils or reservations. It could have been Lord Pannick speaking: the judgement was nothing more or less than a précis of his presentation. You do not need any specialized knowledge of law to understand every word of it: it was a political speech such as one reads daily in Hansard.

The drumbeat insistence of an excessively long prorogation of five weeks ignored the reality that, because of the party conference season, the average estimate of the period of parliamentary time lost totalled five days. Despite the supposed urgency, none of the opposition parties had made any move to cancel their conferences. Lady Hale’s claim that parliament was being prevented from carrying out its “constitutional functions” invites the question: which functions were those?

Parliament had passed the Benn Act against WTO Brexit by the time of prorogation. If prorogation had prevented completion of that legislation, Lady Hale might have had a legitimate point. But no further Brexit mischief was contemplated by MPs prior to 19 October, so what vital constitutional exercise was frustrated by the loss of five days? It is incumbent on a court of law to examine and take such considerations into account, but that was neglected.

The Supreme Court has devastated the British constitution. That constitution is a delicate and complex interplay of relationships between three main pillars: the Monarchy, which has devolved most of its power to the Executive; Parliament; and the courts. This relationship relies on mutual respect among those arms of governance, guided by conventions and predicated on fair play. Brexit has caused the establishment to renounce the principle of fair play and this has now rendered the constitution unworkable.

The royal prerogative is not peripheral to the constitution, it is the kernel. Prorogation is a key function of prerogative and the prime minister’s advice to the sovereign on prorogation is the most privileged of all communications. Lady Hale claimed that when the commissioners entered the House of Lords to prorogue Parliament they might as well have been carrying “a blank sheet of paper”. But it was not a blank sheet of paper: it bore the signature of Elizabeth II.

The Benn Act subverted the prerogative by removing international treaty-making from its purview; now prorogation has similarly been removed. The royal prerogative is now effectively non-existent. Do we need a state opening of parliament? Why would the Queen have any locus in opening an assembly she cannot prorogue? Within a single month the prerogative has been demolished first by a feral parliament, then by a usurping law court.

Yet prerogative is the basis of many crucial activities of government. Deprived of the right to make treaties and made the prisoner of an insurgent parliament that will not allow an election, the Prime Minister is rendered virtually impotent. Effectively, we no longer have a government.

Judicial activism is the curse of Europe and North America. The US president cannot take the most basic action without it being blocked by some judge out in Hicksville.

Judicial activism does not come any more aggressive than the latest decision by the Supreme Court. MPs are toasting its decision now, but they should beware: with Government impotent, Parliament and the Supreme Court are now the contenders for primacy in exercising a usurped power. The House of Commons may have raised up a dangerous rival. The Supreme Court is Britain’s first “woke” tribunal and it will not stop here. We are entering an era of tyranny by litigation.

Nor should we forget the real object of this exercise: to nullify the democratic votes of 17.4 million people. The 330 (counting the partisan Speaker) self-entitled MPs blocking Brexit in the Commons and the 11 John Bercows on the Supreme Court bench are trivial in number but occupy all the strategic points in the establishment. The enemy is in plain view and 17 million Britons have to decide whether to tug the forelock and defer, or use the ballot box to sweep away the extended cocktail party of elitists whose Brexit-blinded irresponsibility has reduced this country to a state of anarchy.

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