For the benefit of non-lawyers, the argument was not over whether the Queen could prorogue Parliament on Boris Johnson’s advice (she clearly could), but whether the judges could and should control how, when, why and for how long she did so. The answer, contained in 10,000 words (short for a Supreme Court decision), was that even though there had never been any such intervention before, they could, and they would.
The court, through its president Lady Hale, said that its job included not only protecting private rights but “upholding the values and principles of our constitution and making them effective”; that as far as the court was concerned Parliament’s control over the Government’s purse strings was an insufficient check on over-long prorogation; that whatever Mr Johnson’s motives it was entitled itself to determine that five weeks’ shutdown was too long unless it saw a good reason for it; that there was no such reason.
It followed that, whatever we might have thought, there had been no prorogation at all and Parliament could meet whenever it liked. The small matter that the Bill of Rights of 1688, a Parliamentary statute, forbade the courts to impeach or question any proceedings in Parliament it impatiently brushed aside. Prorogation, it said, was something imposed on the Commons and Lords rather than determined by them by vote, and so was not a proceeding in Parliament.
Each one of these pronouncements is tendentious, and every one is worrying. There is every difference between a judge zealously protecting private rights from political interference, and a court awarding itself a kind of roving commission to preserve an air of what it sees as constitutional virtue, whether in the shape of constant Parliamentary supervision or any other abstract value it chooses to impute to our constitution. Rights are the province of the judiciary; constitutional propriety, involving as it does political judgment and ultimately the hazard of the ballot-box, is that of the executive. For eleven highly intelligent and well-educated men and women to suggest that there is no real difference is, shall we say, disingenuous.
Again, by insisting on a right to scrutinise any prorogation in case it looks longer than the court thinks it constitutionally should be, the judges are laying claim to dictate political practice to an extraordinarily detailed degree. It is not as though prorogation is being used to set up a dictatorship, or to dispense with Parliament entirely like James II; nor yet that Mr Johnson was found to have misbehaved or acted with any evil motive. We are talking the loss of a mere four or five days’ Parliamentary sitting; if this merits judicial interference on the ground of high constitutional principle something is wrong.
Yet more worrying is that, for all the pro-Remain press may suggest the opposite, none of this was inevitable. However much sympathy we may have for a court merely applying existing law for better or worse, there was nothing compelled about this decision, despite its enormous departure from precedent. There were any number of ways in which the Supreme Court could, without doing violence to previous practice, have deftly left this political hot potato on the ground. It could have said that questions of good constitutional practice were outside its remit; that the necessity of perceived neutrality meant that it would not intervene in sensitive political matters in the absence of proved bad motive or extreme results; or that there was no way one branch of government, the judiciary, could order another, Parliament, back into session.
For that matter it could perfectly well have decided that the whole matter concerned proceedings in Parliament outside the courts’ competence (it was, after all, the Queen, part of Parliament, proroguing both Houses of Parliament on the advice of Boris Johnson, a member of Parliament). This, in other words, was not only a revolutionary decision, but one which all those participating must have known perfectly well moved the goalposts of the British polity several yards.
What we now have is two things. One is a major constitutional innovation introduced by the Supreme Court, involving a substantial accretion of power to legislature and judiciary at the expense of the executive. Given that the whole process took a mere eight days from start to finish, there is a strong argument that our highest court imprudently allowed itself to be bounced into a precipitate decision which ought to have been a great deal more considered.
The other, ironically, is a downgrading of the democratic process. The court’s decision will actually remove a good deal of public life from the political into the technocratic arena. The handling of Parliament, its members and its procedure used to be the stuff of politics, for which the penalty of failure is electoral disaster. Now, however, decisions that once would have been made on the basis of political calculation are to be protected from majoritarianism, balanced instead in the academic scales of whatever abstract values the court chooses to see as underlying the state we live in.
One final thought. Intemperate social media accusations of bias levelled at the court, as they were on Tuesday, are simply wrong; they help no-one and poison minds. But there is something more subtle going on here. Lady Hale, never frightened of controversy, has accused the judiciary repeatedly of comprising a bland white male monoculture. She is right about the monoculture.
But the real threat is not to do with sex or skin colour; it is to do with uniformity of social outlook. Almost without exception, all our senior judges grew up in the university world of the 1970s, where largely left-of-centre law faculties regarded as axiomatic the idea that the future must lie in academic human rights discourse, technocratic control by administrative judges of elected ministers, and above all the continued development of the European project (for some reason always pronounced pro-ject).
Two of the Supreme Court, indeed, had previously spent a long time as university teachers. Now imagine the Justices at the end of last week, faced with a Prime Minister who rejected many of these values and no doubt a subtle suggestion (from whom, it would be invidious to speculate) that deep constitutional values were at stake and it would be good for the Supreme Court to flex its muscles to cement them. Add to this that most of the Justices moved, as do the majority of senior judges, in establishment circles that seriously distrust Brexit and the populism associated with it, and you will see that the pressure to join in a unanimous exercise in snook-cocking must have been very strong indeed. And the outcome, dear reader, you have seen.
Author: Andrew Tenttenborn
First published in The Salisbury Review: https://www.salisburyreview.com/blog/supreme-court-jarndyce-versus-jarndyce-2019/
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