The Supreme Court’s Judgment on Prorogation

My prediction that the Supreme Court would decide that Government’s prorogation of Parliament was entirely wrong. I do not understand the reasoning of the decision.

In this case several features stand out.

  1. The eleven justices all made a single judgment; there was no dissenting opinion, which is odd considering that equally senior judges including the Lord Chief Justice, the President of the Queen’s Bench Division and the Master of the Rolls already made a decision which was precisely the opposite of that of the Supreme Court decided. It may be that the Supreme Court judges decided that because of the constitutional importance they had better put dissent to one side an publish a single decision even though some of them may have disagreed with it.
  2. The judges stressed that the case was not about Brexit. They were wrong. The case was entirely about Brexit. Those opposing the prorogation did so not because they were genuinely opposed to a five week prorogation during the party conference season, but because they wanted to hinder the government’s efforts to improve the deal negotiated by Mrs May and/or to prevent Brexit at all. Their best means of hindrance was to keep the Parliament open so that the sound bites of those opposing Brexit would continue to criticise the government and that criticism would receive all due publicity. It was not about Parliamentary scrutiny – the intended prorogation had left sufficient time for that – it was about preventing Brexit and/or embarrassing the government who cannot now govern at all because of the way in which the House of Commons will continue to prevent the government from doing virtually anything.
  3. The judgment recognises the principle that parliament is sovereign over the government but reduces the government’s powers to prorogue which most constitutional lawyers believed that the government had to prorogue Parliament for short periods in times of crisis.
  4. The judgment fails to recognise that the people are sovereign over Parliament.
  5. The judgment did not fairly reflect that this was a new area of law upon which there had been little precedent and therefor different opinions about the law were not only possible but to be expected. The words of Lady Hale gave the impression that the government had knowingly acted unlawfully. This was unfair, especially as she had described the case as “a one off”.
  6. The heart of the decision of the supreme Court is, in my opinion, contained in these words Prorogation “will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course. 51. That standard is one that can be applied in practice.
  7. The court, having set the standard (for the first time) measured what it knew about the government’s decision and measure it against that standard. It found the government wanting. This inevitably means that any future government of any hue will find the exercise of any prerogative power being examined in court at the behest of their political opponents. It is not a consummation that we would find helpful, democratically or politically especially when the meaning of “without reasonable justification” is ligated time and time again, as it will be in future.

Parliament re-opened today in accordance with the ruling of the Supreme Court. As far as I can see no time was spent on scrutinising legislation but on hurling insults and criticism across the chamber. I expect this to continue for weeks to come.

Closing Doors that lead to Nowhere

I see that Guy Verhofstadt has told Members of the European Parliaments “Juncker or Tusk can do a lot of things, but at least they cannot close the doors of our house”. That statement is true but it missed the point entirely, and like much of what comes out of Mr Verhofstadt’s mouth is misleading.

The European Parliament has virtually no powers when compared with the UK Parliament. The European Parliament cannot introduce legislation or bring new laws into being. In those circumstances there is no point to closing the doors of the European Parliament. They lead to nowhere.

Hypocrisy in Action

Many members of the Parliament of the United Kingdom are upset and distressed because the government will curtail the time available for them to introduce legislation to prevent a “no deal” Brexit by a few days. They complain that this is constitutional. They have had more than three years to introduce such legislation, but this apaprently has not been long enough.

They fail to mention that in the EU Parliament (which they want the UK to remain linked to by preventing Brexit) no member of that Parliament has ever had the right or ability to introduce legislation to prevent the EU from doing anything.

Parliament seeks to thwart the will of the People

In the present maneuvers over Brexit all sides claim that they are acting democratically. All sides have their own interpretation of democracy.

The Prime Minister says that he is acting democratically in ensuring that the will of the people, who voted by a majority to leave the EU, takes precedence over the will of Members of Parliament most of whom were elected on a promise that they would implement Brexit. But promises by those seeking election cannot be relied upon.

Many Members of Parliament claim that preventing members of Parliament from changing the law to enable Brexit not to take place or to be delayed is undemocratic. Nicola Sturgeon, First Minister of Scotland, claims that interfering with Parliament is the act of a dictator by which I suppose she means that implementing the will of the majority of the people is the act of a dictator.

As I see it, the majority of the people of the UK voted to leave the EU. Members of Parliament derive their authority from the people. Members of Parliament in seeking to delay or prevent Brexit are thwarting the will of the majority of the people. To thwart the will of the majority of the people is undemocratic: it is as simple as that.

The Making of Laws

Once things were simpler; we had (in common law jurisdictions) laws created by custom (no more than what most people usually did), which turned into precedent, mostly solemnly followed by judges and laws made by the dictate of monarchs. Then, with the coming of Parliamentary democracy Parliaments made laws which they called statutes. Things became more complex.

Continue reading

Democracy Day

Today is democracy day, apparently. We are supposed to celebrate democracy, which is not an easy thing to do, but humans enjoy celebrating things that they do not understand as the great religious festivals show. Continue reading

Constitutional Reform

It is possible that the referendum in Scotland, whatever its result may be, will lead to constitutional reform over the remaining parts of the United Kingdom. Certainly  there is plenty of scope for reform. The major institutions or practices that need reform or abolition are

  • the House of Lords; if the UK needs a second chamber then it should be elected, for better or worse, and not appointed.
  • the ability of elected politicians to appoint their cronies into offices of power without a proper application process.
  • the House of Commons needs to be elected by constituencies that have approximately the same amounts of voting populations. There should be fewer Members of Parliament who should be paid a decent wage and whose services should be provided by the government direct; we need to abolish the system of grants and allowances.
  • Members of Parliament of the UK should not be allowed to vote on measures that are devolved to their local national parliaments.
  • I would prefer the abolition of all titles, including that of the monarch and those of her family. However, i suspect most of the country would disagree with me on this point.
  • I cannot see the point of expensive to maintain holiday home accommodation for ministers. I know their jobs are important but they do not need to undertake them on estates of luxury surrounded by expensive art that belongs to the nation.

My prejudice is in favour of democracy. it is the least imperfect system of government and its main disadvantage is the insidious corruption that accompanies it, made easy by their being in the United Kingdom, a system to enable corruption to thrive in a perfectly legal way.