Last week the Supreme Court unanimously found that Prime Minister Boris Johnson’s decision to prorogue parliament for five weeks was “unlawful, void and of no effect”. Some of the reactions to this verged on the hysterical. Jacob Rees Mogg for one described it as a “constitutional coup” and “the most extraordinary overthrowing of the constitution”. While Johnson, knowing better than 11 Supreme Court justices, simply said the decision was “wrong”.
Whatever your views on Brexit, it’s hard to believe that a Prime Minister in 2019 would gag Parliament during an extraordinarily important moment in Britain’s political history. Then blatantly lie about his reasons for doing so. This behaviour was extreme in its defiance of established norms. It was not contrary to any written laws, but the silencing of Parliament flew in the face of Parliamentary sovereignty - a concept which has been held as the bedrock of our constitution since the Revolution of 1688. Similarly, it defied the constitutional principle that ministers are accountable to Parliament.
In their decision, the Supreme Court simply restored the status quo. But never has the status quo been so controversial. Perhaps this is a sign that the time is ripe for a written constitution (as Anthony Barnett recently argued).
Imagine if the reverse decision had been made - the Supreme Court had agreed with the High Court that the matter was beyond their remit (non-justiciable), or simply found that the Prime Minister had acted lawfully. It would have been chilling to realise that an executive could act with impunity by proroguing Parliament without justification and knowing that the Courts would also not hold it to account.
Some have suggested that the decision represents an overreaching judiciary. Lord Sumption, the Supreme Court judge who retired last year, has recently been critical of what he sees as the expanding role of the courts. In his Reith lectures he argued that the judiciary have been increasingly performing an undemocratic, quasi-legislative role. But in this case, his position was not that democracy was being undermined by the Courts, but by the Government itself.
Looking at the Supreme Court’s decision through a purely political lens is not just inaccurate but dangerous. Lady Hale said they would be ruling on the case “without fear or favour, affection or ill will” and “are not concerned with wider political issues”. The independence and impartiality of the judiciary are keystones of the constitution, now also codified in the Constitutional Reform Act 2005. Yet former Conservative MEP David Bannerman raged on Twitter that the Supreme Court are “100% remain”. And Brexit Party MEP John Longworth wrote in the Telegraph that the “Supreme Court has sided with usurping Remainers over the people”.
Judges are of course imperfect human beings (and there are problems with a lack of diversity in the Supreme Court) but the accusation that they would decide a case on the basis of their political leanings rather than on the law itself is an accusation that threatens the very fabric of the UK.
Reactions like Bannerman's and Rees Mogg's, even Johnson’s comments that the decision was “wrong” show a disregard for the judiciary. Not only is it by definition impossible for the Supreme Court to get the law wrong, it is this kind of language which, taken far enough, leads to the view that the judiciary are “enemies of the people” (as per the Daily Mail headline following the Miller case in 2016).
Our justice system is by no means perfect (and openJustice regularly publishes examples of how the rule of law is, increasingly in recent years, being undermined). But a basic understanding of the role of the judiciary in preserving the rule of law and of holding public bodies and the executive to account, irrespective of changing political tides, is crucial. The Supreme Court can and would strike down unlawful decisions of a far-left government too.
Prominent political figures who are openly criticising the decision through their narrow political lens should know better. As the UK increasingly descends into tribal fighting, we should be defending the institution that holds power to account.