If it ain't broke, why break it?
There have been two events in recent weeks which have changed the constitution of the United Kingdom:
the Legislature’s seizing of the order paper of the day in order to frustrate a major pledge of the Executive’s manifesto
the finding of the Supreme Court that the prorogation of Parliament was justiciable (i.e. a matter for the Court to pronounce upon) and unlawful
Both of these changes to our constitution were carried through in haste, without any attempt by Parliament, the judiciary or the media to subject these fundamental changes to forensic scrutiny. In both cases, the desire of the establishment to impede or overturn the result of the 2016 referendum seems to have taken precedence over all other considerations.
I will review each of these incidents separately.
1. The Legislature’s seizing of the order paper of the day in order to frustrate a major pledge of the Executive’s manifesto
With the connivance of the Speaker of the House, those MPs opposed to the UK leaving the EU “with or without a deal”, seized the order paper and used the opportunity to take “leaving with no deal” off the table. (While the motives of some of these recalcitrant MPs may have been pure, they could scarcely have failed to realise that their action effectively destroyed the UK’s negotiating position, making it pellucidly clear to the EU that there was no need or point in making any concessions whatever.)
But that was not the real significance of this incident. The real significance was that the action of the Speaker in allowing the House of Commons to take control of the order paper removed a crucial check in our Parliamentary system and altered fundamentally the balance of power between the Executive and the Legislature.
First, the removal of a crucial check. In our system before this incident, the Executive proposed laws and the Legislature considered the proposed laws and, if it approved them, voted them through. Now, however, if the Legislature can both propose and approve laws, there is no check. Any majority in the Commons can , without reference to the Executive or the electorate, propose and enact any law, without it having any democratic legitimacy other than a majority in the House – even if it overturns a commitment on which the Executive and the Legislature were elected into office. This incident has effectively turned our system into a potential oligarchy of 326 MPs, answerable to no one.
Some might argue that this anomalous situation arises only in a hung Parliament and is therefore not so very serious. But this is not so.
Let us suppose a right-wing government is elected on a moderate manifesto with a large majority. As time passes, the majority of MPs decide that the Executive is not sufficiently fervent in its right wing polices. A majority of MPs take over the order paper and pass a law forcibly to repatriate all foreigners.
Or let us suppose a left wing government, with a moderate left-wing agenda is elected with a large majority. As time passes, the majority of MPs become disillusioned with the gradualist approach of the left-wing Executive and decide to take control of the order paper and pass a law abolishing all property rights.
In each case, the Legislature will have acted within the law but it is within a new convention which renders party manifestos and traditional political parties largely irrelevant. How will the electorate choose whom to vote for if the Executive which produce the manifesto is powerless to prevent the Legislature from not only making their own laws but also actually legislating against the primary policies of the Executive.
Secondly, a fundamental shift in the balance of power. If the right to formulate laws is divided equally between the Executive and the Legislature, but the right to approve them and enact them is reserved to the Legislature, the balance of power has shifted decisively in favour of the Legislature. Indeed it gives the Legislature more power than the Executive ever had.
It could be argued that the House of Lords is still in situ to discharge a checking function but surely the competence, the composition and even the existence of the House of Lords will in future presumably be within the remit of the Legislature.
2. The finding of the Supreme Court that the prorogation of Parliament was justiciable (i.e. a matter for the Court to pronounce upon) and unlawful.
I am not a Constitutional lawyer, but the finding of the Supreme Court goes against logic. Let me explain why. When Boris Johnson prorogued Parliament, he did so within the convention prevailing at the time. Most constitutional lawyers expected the Court to find in the Government’s favour, partly because most thought the issue was not justiciable and partly because it had always been the convention that the Executive could prorogue Parliament at the end of a Parliamentary session. There was a case that the prorogation was four or five days longer than usual but it was not long enough to prevent the Opposition from scrutinising any Government action or, with the Speaker’s help, from legislating against it And lower courts in England and Northern Ireland had already judged the issue non-justiciable.
So, although no one could be certain of the outcome, the balance was in the Government’s favour. Either the Supreme Court would decide the matter wasn’t justiciable or, if they decided it was, most expected them to adhere to the convention. What they did, delighted the opponents of the Government but, and this is the point, it astonished everyone. Everyone acknowledged that, in taking this particular decision, the Supreme Court had set a new precedent with incalculable repercussions for our judicial and Parliamentary system.
Given that is so, how could they conclude that the Government and behaved unlawfully? What the Government had done became unlawful only after the judgement of the Supreme Court. The Supreme Court was not finding that the Government had behaved unlawfully; they were in effect (assuming they were rational) giving a judgement that would make such behaviour unlawful in future.
The Supreme Court’s assertion that, because of their judgement, the prorogation had never happened was pure Alice in Wonderland. If I commit suicide by jumping off a bridge and a judge subsequently decides, for the first time, that committing suicide is illegal, I didn’t break the law when I committed suicide. At the time, there was no such law. More to the point, I won’t come back to life just because of the judge’s judgement.
Whether you support the Government or the Opposition, whether you are a Remainer or a Brexiteer, surely everyone can see that, with the connivance of the Speaker, and the constitutional hooliganism of some members of Parliament, fundamental and incalculable changes have been wrought on Parliamentary constitution without any of the forensic scrutiny and wise consideration that should precede such changes?
It is also obvious that the Supreme Court, on its own initiative and without precedent, extended its jurisdiction into essentially political matters. It may well have a right to do so, but it represents an unexpected change to our constitution which will have incalculable consequences.
Whether we leave the EU or remain, somebody will have to put our constitution back together when this is all over. I just hope that the Government, in pursuit of its Brexit policy, does not follow the example of the Speaker, the Remainer camp and the Supreme Court by ruthlessly exploiting some obscure, dubious device or argument to achieve its ends. We don’t need any more holes ripped in our constitution.
2019 10 01