On 24th September 2019, a date now written in infamy, the UK Supreme Court ‘pretended’ to annul not merely a specific order to prorogue Parliament, but in a very particular manner, to gut the very nature of the royal prerogative itself, and the place of the Sovereign at the heart of the British constitution. With either unprecedented constitutional illiteracy or mere mendacious pen-putsching, the opinion declared unlawful an Order issued by Her Majesty issued within her royal right. Absent a response from the Sovereign and her ministers – and despite the protestations of the Court and its aptly-named “President” to the contrary – it is hard not to conclude that we live today in a wholly “unlawful” kritocracy.
At the heart of their assault on our settled constitution, the kritai, with incorrigible humbug declare: “Let us remind ourselves of the foundations of our constitution. We live in a representative democracy.” What brazen lèse-majesté! Have our noble ladies and lords so quickly forgotten to whom, but a few years ago, they swore their oaths of allegiance? Was it not to “her Majesty Queen Elizabeth II, her heirs and successors according to law”?! With what haste they have forgotten that “according to law” binds their actions, and not Her Majesty’s. We, Her loyal subjects, are not amused!
It is a fine thing for the soapbox politician to talk about “the rule of law”, “the law of liberty”, and “the rule of the people”, but for a court of law non-metaphorically in the most significant constitutional case of recent years to define our constitution thus, and to rule in such a manner as to demote the Queen little more than “a Duke of Venice”, is little short of insurrectionist. A sovereign state is determined neither by rhetorical effervescence, nor by ideological determinism, but by common acknowledgement of the locus of sovereign power and authority. Perhaps our ladies and lords need to be reminded Who is Head of State; Who must give assent to legislation for it to become law; for Whom we fight and die; and, from Whom they derive the entirety of whatever authority they possess. We need not speak of the numerous benefits of having in Her Majesty a hereditary Final Arbiter, or an Anchor for our democratic institutions. Monarchy simply is the defining characteristic of the British state.
Yet the upstarts are not finished. “The House of Commons exists because the people have elected its members” spouts section 55. This expression is true in the same way that “an official Ford dealership exists because people buy and sell their cars there” is true. While Parliament’s legitimacy may derive from the people, its authority derives from the Sovereign. In the words of none other than the Guardian following the Russell-Moyle outrage, “The mace represents the Queen’s authority in parliament; without it, parliament cannot meet or pass laws.”
Not content to block, the judges make the same error with regards to the executive. “The Government exists because it has the confidence of the House of Commons. It has no democratic legitimacy other than that.” Again our noble justices are either being constitutionally illiterate or utterly mendacious in conflating authority and legitimacy.
In Section 69, we reach the culmination of the opinion’s tortured reasoning: “The logical approach to that question [of whether ‘unlawful’ advice makes an Order in Council unlawful] is to start at the beginning, with the advice that led to it. That advice was unlawful. It was outside the powers of the Prime Minister to give it. […] It led to the Order in Council which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed.”
Given their shaky relationship with logic, allow a mere commoner to point out that the logical approach to the question is to start at the end. The Queen cannot act unlawfully in executing Her prerogative, otherwise known as Her absolute authority, privilege and right. Therefore, no advice given to Her can render that prerogative unlawful.
To begin from standardless lawfulness tests derived from contrived and ungrounded constitutional principles, before pretending to gut the power of the royal prerogative, is an affront to the authority of the Crown.
The Crown is fully entitled to defend its right. In the circumstances, it may have no other option.
Author: Alexander Black. The article is in the public domain.