The Judicial Usurpation of Parliament

Far too often nowadays I have that disturbing feeling of walking on a thin crust suspended over a great void. Things and institutions I have regarded as secure and permanent all my life keep disappearing. I had this feeling on Tuesday when our new “Supreme Court” (an absurd term, as we shall see) started ordering our government about.

We were warned. The revolutionary Blair government, crammed with former student Marxists but bizarrely viewed by media and politicians alike as “right-wing,” had announced years ago that it planned to set up such a body, supposedly to tidy up and “modernize” our messy laws.

Others wondered if they had something else in mind—something that might lead to the scenes of last Tuesday, when a British prime minister, while on a diplomatic visit to New York City, was publicly humiliated and effectively ordered home by a roomful of lawyers. One wise prophet, the distinguished judge Lord (David) Neuberger, warned  in October 2009 that the planned new court could assert itself against the Parliament-based government. He said there was a real risk of “judges arrogating to themselves greater power than they have at the moment.”

He suggested that the Supreme Court had been created “as a result of what appears to have been a last-minute decision over a glass of whisky.” And then with even greater prescience he prophesied, “The danger is that you muck around with a constitution like the British Constitution at your peril because you do not know what the consequences of any change will be.” 

Well, quite. But the man who piloted the change through Parliament, the left-wing lawyer and one-time flatmate of Anthony Blair, Lord (Charles) Falconer, seemed pleased at the possibility of a more politically engaged and aggressive judiciary. He predicted: “The Supreme Court will be bolder in vindicating both the freedoms of individuals and, coupled with that, being willing to take on the executive.”

Why did we never even have such a body until ten years ago? As we shall see, it would have been, and still is, a contradiction in terms. But in interesting times such as these, elephants fly, fishes walk, figs grow on thorns, and oxymorons inherit the earth.

The most powerful law court in the land was, by a curious paradox, not in the land at all, but based in tiny Luxembourg, across the Narrow Seas which have kept invaders from our door but are useless against bureaucratic takeovers by the European Union. There sits the European Court of Justice, which as long ago as 1990 established that it could tell British courts to overrule British Acts of Parliament when they conflict with E.U. law. It can carry on doing this until we eventually do leave the E.U., if we ever do.

These various messes came about because  we are so old, and rely so much on convention and manners, that it is all too easy for unconventional and ill-mannered busybodies to come storming in with new ideas. England’s constitution was not planned and built, like America’s. Instead, it grew during a thousand years of freedom from invasion. Both are beautiful in their way. America’s fundamental law has the cold, orderly beauty of a classical temple. England’s has the warmer, more chaotic loveliness of an ancient forest. It seems to be wholly natural but, when examined closely, it shows many signs of careful cultivation and pruning. Our powers are not as separated as America’s, but slightly tangled. Still,  it has worked well enough for us over time.

Any thinking person must admire both the American and the English constitutions as serious efforts in a world of chaos, despotism, and stupidity to apply human intelligence to the task of giving people ordered, peaceful, and free lives. They have a common origin in the miraculous Magna Carta, which Americans often revere more than modern Englishmen do. We in England have grown complacent about our liberty, and have become inclined to forget our great founding documents.

But the two constitutions are not the same, and in my view they are not compatible. For my whole life, until a few years ago, the very idea that England should have a Supreme Court was an absurdity. The Highest Court in England is the Crown in Parliament which, as I was once taught, had the power to do everything except turn a man into a woman. In these more gender-fluid times, that expression is not much used. But it contains the truth. Parliament can make any law and overturn any law, made by itself or by the courts. 

That is why England (often to my regret) lacks a First Amendment and cannot have one unless we undergo a revolution. No law in England could possibly open with the words “Parliament shall make no law.”’ Our 1689 Bill of Rights, the model for the U.S. Bill of Rights a century later, tells the king what he cannot do and the courts what they cannot do. It grants me (as a Protestant) the right to have weapons for my defense. But while it draws its sword against arbitrary power, it puts a protective arm round Parliament. 

So far so good, though I do increasingly worry that it cannot last. Our system is terrifying in theory, and so in difficult times it could be just as terrifying in practice. With a large enough majority, a government could dismantle our free constitution in an afternoon. In practice, politicians shrink from using such powers and—if they want to attack our liberty—use a delicate salami-slicer for the purpose.

I will try to explain our crisis. Our new “Supreme Court,”  just ten years old and barely out of short pants, has, by eleven votes to none, condemned the Johnson government for suspending Parliament for a few extra days. This is extremely odd.

First, how is this a legal problem at all? Parliament was not dissolved or arrested by soldiers. Nobody has tried to make law in its absence, or raise taxes without it, or illegally prolong the life of our standing army. It was just made to take two weeks extra holiday—at a time of year when it normally takes three weeks anyway for political party conventions. This was a slippery thing to do, but it failed in its aim of making Parliament readier to do the executive’s bidding. Rather spectacularly, Parliament used its remaining days in session to give Prime Minister Al “Boris” Johnson two big black eyes, denying him the general election he wanted and banning him from leaving the E.U. without a negotiated settlement. In short, Parliament proved what most people already knew: It can look after itself when faced with a tricky prime minister, and doesn’t need lawyers or courts to do so.

There’s another problem. Another court full of very distinguished attorneys and judges, the High Court, looked at the same thing a few weeks ago and said it was “not justiciable.” This means that there is no keyhole in this problem into which to insert the key of law, no point of legal leverage. In short, it was none of their business and should have been left to Parliament.

This High Court contains some of the sharpest and most experienced legal brains in the country. Yet none of the members of the new court shared their view. How is this possible in any gathering of genuinely independent minds? Unanimity is for sheep. It looked fairly obvious that, given an opportunity to boss the executive about for the first time, the “Supreme” Court had just taken it for its own sake. Britain is now the sort of country where judges can strike down the actions of the head of government—but alas, not the sort of country where those mysterious judges have to undergo searching hearings before they are appointed.

And what were they unanimous about? There was no great statute that had been broken. The supposed “precedents” were desperately thin, and dealt with serious breaches of law. They really didn’t equate to sending Parliament on a couple extra weeks of vacation. Left-wing people by and large whooped with joy over the supposed humiliation of Johnson, whose problems are actually elsewhere just now. The rest of us scraped the debris off the walls and ceiling and marveled at just how lasting, how rich, and how nasty the legacy of Anthony Blair remains.

Peter Hitchens is a columnist for the Mail on Sunday.

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