Not a matter for courts

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Not a matter for courts

Saturday, 21 September 2019 | Philip Johnston

Not a matter for courts

We are pitting the institutions that make up our Constitutional settlement against each other with no real understanding of the consequences

Which is sovereign, the people or Parliament? Is the Crown — that is the Government — entitled to interpret the wishes of the former and override the latter? Should the courts intervene in these arguments, something they have been reluctant to do since 1689? Such arcane questions, once the dusty preserve of academic jurists, are now central to politics in Britain. The bedrock of the UK’s Constitutional settlement, the separation of powers, has been shaken to its foundations by Brexit.

There have been so many unprecedented political events since the referendum in 2016 that is easy to be blasé about the proceedings taking place in the Supreme Court. And yet this is arguably the most extraordinary moment of them all. Here are 11 judges sitting to decide whether the Queen was right to agree to the prorogation of Parliament or whether the advice she received from her Prime Minister was unlawful.

First they must rule on whether this matter is even for the courts to consider at all. The High Court in London concluded that this was non-justiciable because it was concerned with “high policy” and politics, areas that the courts have conventionally stayed away from. Three senior judges in Scotland took the opposite view. Who is right?

A compelling argument for the latter was made by Lord Pannick QC, who successfully spearheaded the previous case before the Supreme Court brought by the businesswoman Gina Miller, insisting that a decision to trigger Article 50 must be taken by Parliament, not the Government alone.

On the opening day of the hearing in London, he contended that the exercise of executive power must be proper, otherwise it was unlawful. This applied both to statutory and prerogative powers; and since the courts had a duty to enforce rules of Constitutional law, the matter was justiciable. It was, Lord Pannick said, the “fundamental principle of our Constitutional law that the executive is answerable to Parliament.” Ministers are the junior partners and, therefore, cannot effectively close down the latter for political purposes.

While all this may be true, he chose to ignore the great big Constitutional elephant in the room: The referendum. Parliament is sovereign only in so far as it derives that authority from the people. It does not exist as a discrete phenomenon. Had there not been a referendum, there would not be an issue. The principle that Parliament is supreme and the executive is answerable to it is not seriously questioned. But there must be a source for that sovereignty. When Parliament is preventing the implementation of a majority decision of the people taken in a referendum, it is arguable that it is Parliament, not the executive, that is behaving unlawfully.

Our system is a balance between the powers of its institutional components. To hear some MPs and, indeed Lord Pannick, one would imagine that what Parliament says goes. Yet once it handed the decision on Britain’s membership of the European Union (EU) to the people, then it was required to enact the public will and not seek to frustrate it.

Perhaps MPs agreed to the referendum, thinking they were doing nothing other than allowing the country to reaffirm its support for the UK’s continued membership of the EU. Certainly, former Prime Minister David Cameron thought so, as he has made apparent in his new memoirs. But it didn’t; so Parliament is no more entitled to thwart the June 2016 referendum result than it was the 1975 outcome in favour of staying. The fact that the latter was heavily in favour while the former was much narrower is irrelevant — at least in principle, if not politically.

Even if we leave the referendum aside, the prerogative to prorogue in this instance does not undermine parliamentary sovereignty. It has not removed Parliament’s power to scrutinise the actions of the executive, even if has limited the time for that to happen.

Furthermore, it was open to the Commons to pass a motion of no-confidence in the Government if it did not like what it was up to. The reason it didn’t was because it did not suit the purposes of the Opposition to have an election at this time.

Lord Pannick said he was not questioning the right of a Prime Minister to prorogue Parliament for political reasons: After all, any prorogation in order to bring forward a Queen’s speech setting out a new programme is a political act. His objection was that the suspension in this instance is for much longer than is necessary because the Government wants to block scrutiny of its actions as the clock ticks down to Brexit day. It was a political decision.

This is true. It is stretching credulity to breaking point to claim that a five-week suspension is needed to prepare for a Queen’s speech that the Government can’t even get through because it has no majority. But if it is political it is not a matter for the courts.

As has become the case in any Brexit argument, the finer legal points are secondary to the entrenched positions of both sides. Those who want the UK to leave the EU are behind Boris and those who want to stay consider his actions to be those of a despot.

But these are dangerous times. We are pitting the institutions that make up our Constitutional settlement against each other with no real understanding of the consequences. Moreover, the people versus Parliament is not a banner under which any Conservative Government should be happy to campaign; yet this is where the Brexit debate has taken us. If the Prime Minister has abused his power then he is answerable to the Commons, who can bring him down, and then to the voters. His call for a general election has been blocked by the Opposition, aided by the Fixed-Term Parliaments Act, which removed the exercise of the crown’s prerogative power to dissolve Parliament.

The case before the Supreme Court is unique. The justices are being asked to decide between an executive acting to uphold what it believes to be the democratic will of the people expressed through a referendum and a Parliament seeking to frustrate it. If that is not a political matter then nothing is. The judges should steer well clear; but I’m not sure that they will.

(Courtesy: Daily Telegraph)

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