Reflections on Supreme Court ruling on Johnson’s prorogation
Where the hell to start with today? There is so much vitriol batting back and forth and I am not looking to provoke that here. Instead, I will try to provide my perspective on what has happened.
My first thought is today’s judgement by unanimous decision of all 11 impartial judges that Johnson’s prorogation of parliament was unlawful is HUGE for the UK. This judgement and where we are as a country has now clearly become much more than Brexit, this is about where power and authority lies in the UK. Where does sovereignty lie? Who has the right to prorogue parliament? Who has the right to make constitutionally impacting decisions which will resonate for decades, indeed, centuries for this country? Where does this power come from and who exercises it?
Second thought: this judgement curtails the PM’s power to prorogue parliament if their reasoning is seen as spurious. From my — admittedly non-legal expertise and happy to hear from those who are qualified in this — viewpoint it shifts power away from the Executive (government) to parliament. This is a trend which has been going on for decades (can trace it back to Thatcher in some respects) and one which makes our democracy more democratic by giving more power to MPs and reducing the power of parties…but whereas prior examples have been incremental, this is a quantum shift and ramifications are not easy to appreciate yet. Because, it also makes running the country harder, less efficient and indeed sometimes impossible to lead. I am no fan of Johnson and wasn’t of May either, but ultimately we need our leaders to have the tools and authority to lead. If they do not, then a country which cannot easily be led and needs to herd the cats of the Commons on every single vote isn’t a country which can necessarily act in choppy international times with agility or capability.
Third thought: judicial independence. This judgement threatens to make the judiciary politicised and are we ready for that? It is a well-known item taught in political studies and law degrees of the separation of powers — Executive (Government); Legislature (House of Commons and House of Lords); Judiciary (courts) — where the theory goes that power isn’t concentrated in one area too much to reduce chances of tyranny, and the decisions of the two former bodies can be independently reviewed by the latter. In other democracies, United States for example, it is not uncommon for the Supreme Court to rule on the constitutionality of the Executive’s decision or indeed lower courts across the land. In the UK it is much more rare. I am not commenting on the verisimilitude of their ruling, more that this sets a precedent in the UK for the judiciary passing judgement on political decisions…something our culture is not used to, a bit like referendums. This, like I said above, will have ramifications for how the UK operates which we cannot envisage yet, just like the 2016 referendum has had. This lack of experience in such hugely important areas creates uncertainty in governance and that does no favours for the stability of our country.
Fourth thought: This is not a win for Remain nor a loss for Leave. It should be seen exactly as what it is: a new chapter on the constitutional evolution of our country. I firmly believe the judges are not pursuing a political objective and instead are using their best judgement to interpret the underlying reasons why parliament was prorogued and assess whether it fits the reason given by the PM at the time. The danger of claiming this as a ‘win’ or ‘loss’ further deepens the entrenched positions, threatens the independence and legitimacy of our judiciary by overlaying a political perspective on an interpretation of law. In essence, the anger and happiness I expect will be poured on this decision by all corners of the press and politicians will undermine the delicate faith and trust in our judiciary to make assessments on the law without considerations of political impact. Something they must do as it is integral to how our country works. So please bear that in mind when seeing any headlines calling them heroes or traitors, they are neither, they are — to use a poor analogy but only one I can think of at the time — ombudsmen on our constitution trying to discharge in as impartial a way as possible their duties.
Fifth thought: I now believe only way out of this mess to get us a House of Commons which can receive the trust of the public and hence, hopefully, produce an Executive (government) which can command the confidence of the House is a general election and one as soon as possible. We cannot carry on with an Executive with no majority at all. We cannot carry on with MPs sitting in seats where their electorate may have an entirely different viewpoint on the EU to them. We cannot carry on with this stalemate where the Executive is powerless, the Legislature is acting like an Executive, the Judiciary is being politicised and the Monarch is being pulled into political decision-making. It is a pathway to ineffective government and potential tyranny from all sides of the political debate whether Leave, Remain, Right or Left.
And finally, if you debate this or disagree with people on these issues, one final plea: do it with as an open mind as possible. Instead of jumping to a defence, ask yourself why this person believes something different to you and understand how they got there, not how best to beat them. As trying to beat people has got us into this sorry mess in the first place. I believe it is better to understand their decision-making and emotional positions than foist mine on them. We’re not going to get out of this mess if we cannot reach across to those we disagree with using the olive branch of an open ear, rather than the megaphone of a shouting mouth.
