Assessment of the Supreme Court judgement.
The portrait is of Sir Edward Coke in June 1614, when he was elected High Steward of the University of Cambridge. Coke was a champion of a particular view of Parliamentary Sovereignty, a view, arguably, closer to US ideas on the US Constitution than to the Bill of Rights which settled UK constitutional arrangements for three hundred years. I put him on the front page because he is the champion of UK constitutional modernisers.
There are a number of points to be made about this ground-breaking judgement: its reception in the press at home; its reception by the press abroad; the historical roots of the British uncoded constitution; and the judgement as innovation in UK constitutional law. In Part IV, I submit the Supreme Court judgement to critical appraisal. Post modernists would call critical appraisal ‘deconstruction – the analysis of underlying bias, in the words of Richard Rorty,the ‘accidental’ features of a text can be seen as betraying, subverting, its purportedly ‘essential’ message.” I make some concluding remarks.
- The Judgement’s reception in the press at home. The unanimous judgement by 11 senior judges, sitting in the Supreme Court, that the Prime Minister had unlawfully advised the Queen to prorogue Parliament in order to silence the United Kingdom’s democratically elected MPs was welcomed rapturously by the country’s largely pro-Remain media outlets – notably The Financial Times, The Economist, The Times, the BBC, The Independent, The Guardian, The Mirror and -as a recent convert to the Remainer cause – The Daily Mail. Gina Miller, the anti-Brexit campaigner who brought the case through the English courts, praised the ruling “as a win for parliamentary sovereignty, the separation of powers and independence of our British courts”. The FT’s law commentator David Allen Green concluded that it is”difficult to think of a more significant constitutional law decision in 50 years”. This provides, he writes, “for the correct relationship between executive, legislature and judiciary. A fundamental assertion of the rule of law and the separation of powers”. The ruling, according to numerous commentators, provided “ a timely indication that the courts are willing to develop constitutional law principles to defend the basic features of parliamentary democracy”.
Remainer media outlets were quick to estimate the immediate fall-out from the judgement. James Blitz, the FT’s Whitehall editor, welcomed the fact that the judgement made it impossible for Johnson to drive the UK towards a no-deal Brexit by proroguing parliament up to and beyond October 31. (The idea that Johnson was driving for a no deal was widely held by Remainers.) Blitz also considered that the judgement made it much more difficult for Johnson to ignore the law passed by Rebel Alliance MPs, demanding an Article 50 extension if a deal could not be agreed at the EU summit, (see September 2 and 3 above in timetable) earmarked for October 17. More dubiously, it was suggested that the judgement made it more difficult for the Prime Minister to prorogue parliament ahead of the October 31 deadline (in fact, the government prorogued parliament from October 9 to October 14). Not least, Johnson did not resign, as Remainers fervently hoped he would.
Johnson’s political opponents had a field day. John Bercow, who had long since abandoned the three hundred year old tradition of the Speaker’s impartiality, greeted the decision to prorogue as a “constitutional outrage”, and welcomed the judgement “that the prorogation of Parliament was unlawful”. Delegates at the Labour conference Hall in Brighton chanted “Johnson out, Johnson out”. Jeremy Corbyn challenged Johnson to “obey the law, take no-deal off the table, and have an election to get a government that respects democracy”. Whereupon Corbyn blocked Johnson’s efforts to call an election. Shami Chakrabarti, Labour’s Shadow Attorney General, said Johnson “had behaved like a tinpot dictator”. Lib Dem leader, Jo Swinson, opined that Johnson “has again proven he is not fit to be Prime Minister”. The SNP leader Nicola Surgeon told Sky News that Johnson should resign. Nigel Farage called on Johnson to sack his special adviser, Dominic Cummings, for persuading the Prime Minister to adopt prorogation as a tactic. None of this point scoring was particularly surprising.
The decision gave Johnson’s critics in the press an opportunity to vent their spleen. “This really must be the worst government in British history, the on-line journal Politics@lunch opined on October 25. The government was inadequate; it lied; was self-interested; it was cynical and irresponsible; it babbled dimwit nonsense; it blathered presentational hogwash; it indulged in the daily jabber of nonsense.
One clear conclusion from this article is that the author did not appreciate the Johnson government. Barring that, its informational content was zero.
Much more harmful was the accusation hurled at the Prime Minister by Lord Sumption, the retired and highly respected former Supreme Court judge, who accused the Prime Minister of “constitutional vandalism” (“Supreme Court ruling is the natural result of Boris Johnson’s constitutional vandalism”, The Times, 24/09/2019). “The government had taken an axe to convention”. “It has sought to use the awesome prerogative powers of the Crown, but without the accountability to parliament that alone makes the existence of these powers tolerable”. Martin Wolf, the highly respected economics editor of The Financial Times, went one whole step further, writing (FT, 08/10/2019, Brexit is a journey without end for Britain”) that Boris Johnson sounded much like Joseph Goebbels, who wrote in 1933 that: “The modern structure of the German state is a higher form of democracy in which, by virtue of the people’s mandate, the government is exercised authoritatively while there is no parliamentary interference, to obliterate and render ineffective the execution of the nation’s will”.
These statements indicate just how violent the discourse about Brexit has become.
- The Judgement’s reception in the press abroad. Foreign newspapers and media outlets fed off British Remainer outrage.In the EU, there was much prim talk about not wanting to interfere in the “constitutional affairs of a member state”. But that was as far as it went. “Best guy to follow on Brexit for intelligent analysis”, wrote Annette Dittert, London Bureau Chief, ARD German TV, about the author of the on-line journal Politics@lunch, cited above. “By far one of the best around, wrote Chris Johns of the Irish Times. “The best writer on Brexit, wrote Chris Lockwood, Europe editor of The Economist; “ A must read for anyone following Brexit, “ said David Allen Green of the FT. Suspending parliament makes the UK look even more deranged and unreliable, wrote Helen von Bismarck in the US Foreign Policy. Britain is in danger of becoming a failed state, wrote Tory grandee, Chris Patten, a message picked up by State Street, the US asset manager. “Thus end democracies”, led the liberal German weekly, Die Zeit, while the left-leaning Süddeutsche Zeitung, opined that Johnson’s new version of May’s deal was equally bad for all. Brexit, wrote Harold James, Professor of History and International Affairs at Princeton, described Johnson and Trump as nihilistic imposters, and accused Johnson of celebrating the the triumph of radicalism, where “the new anti-conservative vision rejects parliamentarianism and champions a doctrine of unmediated popular sovereignty”. Susan McKay, of Irish nationality, writing in the New York Times, purred that “Thanks to Brexit, for the first time in centuries, Ireland has more power than its larger neighbor”.
Johnson was not fazed: in New York at the time of the verdict, the Prime Minister stated that “obviously this is a verdict that we will respect and we respect the judicial process” (not something that Robespierre, Lenin or Goebbels would have been caught saying). “I have to say, he added, that I strongly disagree with what the justices have found”. He was not alone, though non-British readers of the foreign press rarely heard dissenting voices. The main driver behind Brexit, wrote Robert Taylor in The Times of 22/09/2019 (“Vanishingly few outside these islands have ever been exposed to the Leave point of view”) is that “Brexit is, at core, about who makes the laws under which we live”. “What I find astonishing, writes William Shawcross, chairman of the on-line journal, Unherd Insight, in the Daily Telegraph of 21/09/2019 (“The Remainer élite is laughing in the face of our history”) is the destructive and indecent lengths to which the Remainers have since gone to overturn the vote to leave”. Robert Tombs, the Cambridge University historian of England and of France, writes in the Daily Telegraph of 21/10/2019 (“There is no precedent for this, it is something new…”) that “ a substantial section of the political, administrative, business and intellectual classes have been absorbed into a supranational system, which treats democracy as a problem to be circumvented”. ‘If Brexit is finished, he told Spiked, the on-line outlet on 23/11/2019, ” then so is democracy’. Lord Lilley, Minister in the Conservative governments of Thatcher and Major, lamented the growth of “judicial imperialism”, the “bias and incompetence of the Speaker”, and the “undemocratic behavior” of Remainers , determined to overthrow the decision made by British voters in June 2016 to leave the European Union.
John Finnis, Professor Emeritus of Law & Legal Philosophy in the University of Oxford and Biolchini Family Professor of Law at the University of Notre Dame, went much further: The Supreme Court judgement on prorogation, he wrote, was unconstitutional. (my italics). It undercut “ parliamentary sovereignty by evading a statutory prohibition – art. 9 of the Bill of Rights 1689 – on judicial questioning of proceedings in Parliament.” And he described the judgement as is “an inept foray into high politics and should be recognised as a historic mistake, not a victory for fundamental principle”.
Clearly, there was more to the prorogation judgement than swathes of the British and foreign media were prepared to report. European leaders applauded loudly when the UK Supreme Court ruled that Mr Johnson’s government had acted illegally in suspending parliament. Eminent British voices agreed, but others, equally eminent, considered to the contrary that it was the judges who were trashing the UK’s uncoded constitution. With such disparate views about events in the UK, foreigners could be forgiven for failing to grasp what was at stake.
- The historical roots of the British uncoded constitution.
What was and is at stake is that the judgement sheds a harsh light on the existence of two opposing narratives. The first is the traditional view that the British constitution is rooted in common law, the supremacy of the Crown in parliament, and the consent of the people of the United Kingdom; the second is that the UK’s uncoded constitution needs “modernization”, in particular that it should adapt to the dynamic legal system of the EU.
There are strong parallels between the ongoing political struggle over Brexit, and the battle lines that were drawn in the seventeenth century. Here is Robert Tombs on the subject: (“The constitutional rage of the Establishment harks back to Britain’s pre-democratic era,” Daily Telegraph, 31/08/2019). Remainers, he writes, love to champion “the sovereignty of parliament”. “ The Civil War, we are told, resulted from parliament’s heroic resistance to the “tyranny” of Charles I, which is supposed to inspire their successors to resist the tyranny of Boris I.” “In fact, Charles I’s parliamentary opponents were a Christian Taliban “, far “more bloodthirsty, far more bigoted, and vastly more paranoid in their vision of the world” than the King. “Charles always had more popular support, which is why he had to be executed. We then enjoyed a parliamentary government whose aspirations included torturing witches, closing the theatres, hanging unmarried mothers, removing Catholic children from their parents, and abolishing Christmas because of its “carnal and sensual delights”.
Not surprisingly, restoration of the monarchy in 1660 was met with popular rejoicing. But the Stuart monarchs, Charles II and James II, showed “a risky penchant for Catholicism”, and, worse, “clung to a special relationship with Louis XIV’s France, which was busy trying to establish a European hegemony and persecuting Protestants.” As Tombs argues, Remainers defend an “an inflated notion of parliamentary sovereignty. This dates essentially from the Victorian age, when only a minority of wealthy and educated men had political rights, and when parliament therefore claimed an effective monopoly of political wisdom and economic interest. Hence Parliament, it was claimed, could do anything it wished.”
“It is truly astonishing, he writes, to hear this repeated today. It cannot be too often emphasised: parliament alone – and certainly not the House of Commons or a makeshift coalition within it – has never had such sovereignty, and it has never been legitimate for parliament to overrule the popular will, certainly not when expressed legally and solemnly, as in 2016.” The people, in other words, are the ultimate sovereign, to which the Crown in parliament is ultimately answerable. Here is John Locke, the bard of the Glorious Revolution in his Second Treatise, 149. “Though in a Constituted Commonwealth…there can be but one Supream Power, which is the Legislative…, there remains still in the People a Supream Power to remove or alter the legislative, when they find the Legislative act contrary to the trust reposed in them”. A.V.Dicey, in his 1914 introduction to The Study of the Constitution, writes approvingly of the referendum as capable of curbing “the absolutism of a party possessed of a parliamentary majority”. A referendum, he contests, does not involve “the transfer of political power from knowledge to ignorance”.
Both sides in this case on the justiciability or not of Prime Minister Johnson’s decision to prorogue parliament appealed to precedents from the seventeenth century. As Lord Reed stated in his dissenting opinion in the January 2017 “Miller” case, (para 159) “each side of the argument…is based on a principle of the British constitution”. A favourite for those pleading against Johnson was the Case of Proclamations of 1610 ( not 1611, as Lady Hale mistakenly averred in her judgement) in which Sir Edward Coke said that “the king by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm”. https://www.bailii.org/ew/cases/EWHC/KB/1610/J22.html
Both sides quoted the 1689 Bill of Rights which affirmed in Article 1 that “the pretended power of suspending of laws or the execution of laws by regall authority without consent of Parlyament is illegal”. Article 9 went on to affirm that “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out ofParliament.” https://avalon.law.yale.edu/17th_century/england.asp
In Scotland, the 1689 Claim of Right provided that “ all Proclamationes asserting one absolute power to Cass, annull and Disable lawes…are Contraire to Law”. http://www.legislation.gov.uk/aosp/1689/28/paragraph/p20. In Article 18 of theActs of Union of 1706 and 1707, it was stated that provided that “all laws”(with certain exceptions) in Scotland should remain in the same force as before…but alterable by the Parliament of Great Britain”. http://rahbarnes.co.uk/union/union-of-1707/union-with-england-act-1707/
There was good reason for the selectivity: Sir Edward Coke is a champion of parliamentary sovereignty, to which the country was headed in the civil war of 1641-48, as the senior branch of lawmaking, relative to the Crown. According to this view, its modern version is that the prerogative powers of the Crown have been whittled away, “at least in relation to domestic matters”, and have “become vested in the three principal organs of the state, “the legislature (the two Houses of Parliament), the executive (ministers and government more generally), and the judiciary (the judges”; (Miller, 2017 para 41). As an assessment favourable to the judgement stated, the court “relied on two fundamental principles of the UK’s constitution – parliamentary sovereignty and parliamentary accountability”. (Ruma Mandal, In Judging Prorogation, UK Supreme Court Marks Evolution, not Revolution in Law”, October 2019). The Financial Times legal correspondant, writes approvingly that the Supreme Court “does not shy away from setting out starkly the respective roles of the judiciary, the executive and the legislature” (David Allen Green, Supreme Court has returned the power the government stole: This judgment restoring parliament’s potency shows the executive cannot dodge scrutiny, September 24, 2019).
The High Court adjudged this interpretation of parliamentary sovereignty – its functions of scrutinizing and of holding government accountable on policy – as novel. Lord Pannick was “advancing a novel and sophisticated argument resting on parliamentary sovereignty”. But he erred. The Crown, the High Court affirmed, is an integral part of Parliament – and Article 9 of the Bill of Rights, applied to this case, most definitely outlaws judicial questionings of proceedings in parliament. Parliament manages its own affairs, through the device of conventions and Standing Orders. These apply notably to recommendations for public spending, and for the negotiation of Treaties. As Lord Reed stated, the practical reasons for recognizing (the) prerogative power (of the Crown) to manage international relations, identified by William Blackstone in his Commentaries on the Laws of England (1765-1769, Chapter 7, “On the King’s Prerogative”), were still pertinent. “ The value of unanimity, strength and dispatch in the conduct of foreign affairs are as evident in the 21st century as they were in the 18th”.
These two interpretations of the constitution-the Crown in parliament and parliamentary sovereignty- are miles apart. Lady Hale, Lord Pannick, Jolyon Maugham QC, the SNP’s Joanna Cherry QC, clearly consider parliamentary sovereignty to refer primarily to its scrutinizing function, and government to be an external agent – an American Constitution, in other words. The Supreme Court judgement abounds in that sense: “the decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out it constitutional function”. The High Court judges, Lord Reed or Professor Finnis champion an efficient government, the Crown in Parliament, as laid down in Article 1 of the Bill of Rights, capable of taking action on internal and external policy matters, but always operating with the consent of parliament, and accountable to parliament, and therefore to the electorate. This holds now as in the 18thcentury, they argue.
- Innovation in UK constitutional law.
Is Lady Hale an activist judge, determined to be “on the right side of history”? If so, she has many companions. The biggest constitutional innovation of all was the 1972 European Communities Act Section 2 which gave parliamentary assent to recognizing European law, defined by the ECJ, as superior to UK law. This Act thereby enlisted the concept of parliamentary sovereignty to affirm the United Kingdom as a non-sovereign state. It thereby revoked the assertion of England’s independence at the time of Henry VIII whereby England had “no superior under God, but only your Grace”. It also sat uneasily with Coke’s judgement in the Case of Proclamations, in that the Crown in Parliament endorsed the EU’s dynamic legal system, which in turn most definitely did “change any part of the common law, or statute law, or the customs of the realm”. This was of course not the sense in which the eleven judges of the Supreme Court – all part of the EU’s ever closer network of judicial activity in support of the EU’s collective sovereign – interpreted Coke’s judgement of 1610. The “conduit pipe” most definitely did change parts of the common law, statutory law and the customs of the realm.
Lady Hale is not alone in being reported as a Remainer. There is not one judge on the Supreme Court who is not reported as a supporter of the Remain cause. Lord Sumption is reported as an enthusiastic supporter. At the very least, it may be said without fear of contradiction that Lady Hale and her fellow judges consider that the UK constitution requires a healthy dose of “modernization”.
The roots of this reformatory zeal may be traced in part to the Charter 88 movement, founded as a riposte to the transformation of the British economy under Margaret Thatcher in the 1980s. As one of its founders, Anthony Barnet, wrote (Goodbye Charter 88: a new epoch for democratic resistance has begun, OpenDemocracy, 20/11/2011), “her (Thatcher’s) success was built upon the unity of Britain’s traditional state and its elite culture, which she bent to her political will. In response, democratic reformers wanted to match Thatcher’s will with our own energy, only we wanted a plural, constitutional democracy to be the outcome.” The Charter 88’ programme proposed: a Bill of Rights, Scottish and Welsh Parliaments, Freedom of Information, fair voting, replacing the hereditary Lords, all combined together in a call for a democratic written constitution. In British terms it demanded a democratic revolution.”
It was implemented, half-cock, by successive Blair governments. Devolution to Scotland, Wales and Northern Ireland fragmented the unitary state; the 1998 Human Rights Act of 1998 expanded the non-parliamentary sources of judicial activity, already greatly expanded by the development of the EU corpus juris,under the guidance of the ECJ. In December 2007, the British government signed up to the Lisbon Treaty – which in all but name functions as a European Constitution, and therefore as a definitive document for the workings of the United Kingdom’s uncoded constitution.The status of national parliaments of member states is evident in the provision that if one third of national parliaments favour a review of the EU Commission’s measure, the Commission must consider the matter. This is not a description of a sovereign parliament. As Professor Anthony King observed in his book, The British Constitution, OUP 2010, at the turn of the millennium, a subtle change entered the vocabulary deployed to discuss the British constitution: previously, people had talked about “government”, and a “balance of powers”. They now began to talk of “the executive” and “the separation of powers” along US lines.
In 2000, the European Court of Human Rights ruling in McGonnell v.UK cast doubt on the legal validity of any judicial involvement in the passage of legislation (https://www.legal-tools.org/doc/190896/pdf/). Here was a case that opened the way to a further strand of the New Labour government’s “modernization” itch. In 2002, Prime Minister Blair determined to abolish the 1,400 year old office of Lord Chancellor, who sat in the Cabinet while being also the head of the judiciary. The Law Lords were not consulted, and on October 1, 2009, a Supreme Court was set up physically removed from Westminster, with the judges regaled in ceremonial gowns of gold and black. Arguably, the new Supreme Court prompted accusations of helping to supercharge an already latent trend to judicial activism (for a more reserved discussion, see Brice Dickson,. Activism and Restraint within the UK Supreme Court. European Journal of Current Legal Issues, 21(1), 2015, who nonetheless concludes that “ one or two of whom appear to be straining at the leash”). As Philip Johnson points out, the judgements of the Supreme Court, “together with the Human Rights Act and the supranational reach of the European Court of Justice, has tipped power away from the Crown and towards the courts and the parliament” (From the rule of law to the rule of lawyers, Daily Telegraph, September 25, 2019).
There is another, equally significant dimension to these innovations in UK constitutional law. Their partisans in the UK see them as bringing the antequated UK constitution up to date with US and EU practice, in other words practice that is alien to British traditions. Here is John Longworth, Brexit Party MEP, and former Director-General of the CBI: “ Our tradition has developed, with the support of the common law, over centuries… Crudely, the common law allows people to do what they like unless it is prohibited, while the continental Roman or Napoleonic tradition codifies everything and prohibits people from doing anything, unless it is permitted. This is not just a dry legal matter, it defines in a most important way the cultural difference between the UK, and its former colonies and the Commonwealth including the USA, and (the member states) of the EU, and why these two do not make good bedfellows”.
Compare this with an extract from Will Hutton, the public intellectual, pundit and currently Principal of Hertford College, Oxford – in the conclusion to his 1986 book on Keynes, The Revolution that Never Was, written in the heyday of Prime Minister Thatcher’s governments. The Keynesian revolution failed because, seen in the light of the (superior) continental tradition , “Britain is stateless” (p.204). Citing Professor Kenneth Dyson’s 1980 book, The State Tradition in Western Europe, he writes: “Legal codes and constitutional courts are critical: they protect the rights of the individual citizen against the all-powerful state – ‘the home of all citizens without respect of person”.
Hutton ends his peroration with the following: “The first step (for reform of the British state) will surely be some separation of the executive and legislative, some strengthening of local decentralized power aginast a necessarily stronger central power, and the prizing of the judiciary from the jealous hands of the legal establishment”.
There could not be a more lucid description of the political reform movement, the culminating judgement of which was, to date, the Supreme Court’s judgement on the Johnson proroguing decision.”
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