If the UK Supreme Court’s decision on the prorogation or ending of the current session of Parliament were handed in as a law student’s assignment, it would be marked as a ‘Fail’. It is no more than a political manifesto posing as a judgement, a grab for power. Rather than a legal interpretation of the constitution, it is part and parcel of a sinister process of turning this ancient kingdom into a republic of the elites.
The judgement constitutes an extraordinary attack on the Glorious Revolution, the 300-year-old constitutional settlement which is surely one of the world’s greatest political achievements. As Montesquieu recognised, this is based on the checks and balances which flow from the separation of the executive, legislative and judicial powers. The independence of the judicial arm was assured by taking it out of politics through Article 9 of the Bill of Rights of 1689. This provides that proceedings in Parliament, of which prorogation is one, cannot be ‘impeached or questioned’ in a court. As every constitutional lawyer knows, they are non-justiciable. The consequence was that Britain, endowed with advanced institutions and people freer than in any rival power, presided for over a century not only as the world superpower but, as with her rebellious American progeny, the most benign and civilised ever known.
Variously seen as a constitutional monarchy and a disguised or crowned republic, she stood out as an exception to the increasing continental infatuation with absolute monarchy, just as she would later stand alone with her Commonwealth against those alien abominations, national socialism and communism. This process was to be completed when responsible government emerged following and perhaps because of the American War of Independence. The convention developed that the King’s ministers must enjoy the confidence of the House of Commons and that the Royal Prerogative, ancient powers not requiring legislation, would be exercised by the monarch on the advice of the ministers. This sophisticated formula for peace, order and good government has been so successful that it is the only model which has been exported and which has worked over a goodly period.
In this system, there are three principal safeguards against abuse which have worked well without the need for activist judges. First, there is the need for a government to enjoy the confidence of the House, especially through the annual requirement to obtain supply. Second, there are regular elections. Third, there is the existence, rather than the exercise of the Queen’s reserve powers. On that it is worth recalling that those powers were doomed to being neutralised under the failed politicians’ republic beloved of the elites but rejected overwhelmingly by the Australian people twenty years ago. An analogy can be drawn between those powers and the nuclear deterrent. In the words of the elegant adage, the Crown is important not for the power it wields, but the power it denies.
It is a sinister and sad fact that in the UK, three important prerogative powers have recently been sequestrated by the elites. They are now using them to support their desperate attempts to deny not only the British people, but also the Anglosphere, their wish to liberate their ancient kingdom from the chains of what is the real controlling presence within the EU, the Berlin-Paris axis. The powers so sequestrated are those in relation to treaty-making, prorogations and dissolutions. All have worked smoothly, efficiently and without abuse for over three centuries, just as they do in most of the realms. This changed with Tony Blair, who, while unsuccessfully trying to abolish the ancient office of Lord Chancellor by a press release not even seen by the Queen, proceeded without any sound reason, need or demonstrated failure to abolish the Judicial Committee of the House of Lords as the kingdom’s final court of appeal. Of all things, he replaced this with a grandiose Supreme Court, à l’américaine, the last institution any democratic society should emulate. The sorry story on this is that the American Founding Fathers took the separation of powers from Britain, which they had seen operating in the colonies, but never expected that the judges would, in Marbury v. Madison (1803), seize an unprecedented, unwritten and never-intended power. This was to declare the exercise of congressional and presidential powers to be illegal and unenforceable and building on this a power to legislate under the guise of constitutional interpretation.
Thomas Jefferson, who wrote the Declaration of Independence, warned that this judicial coup would place the US ‘under the despotism of an oligarchy’ undermining the very stability and accountability of the nation’s governing institutions. The judges then went quiet until the question of slavery became acute in the new territories. The result was a pro-slavery decision in 1857, Dred Scott v. Sandford, which destroyed the Missouri Compromise and, on any fair analysis, triggered the Civil War. This usurpation continued after the war when the court upheld clearly unconstitutional segregation, blocked laws outlawing child labour and unfair working conditions, upheld laws forcing sterilisation and the detention of citizens of Japanese descent. Then followed a series of decisions to legislate a progressive agenda including an imagined constitutional right to abort.
The solution in Britain lies first in a successful Brexit and then in restoring the constitution principles under which the United Kingdom has successfully operated for centuries. To ensure that the illicit imposition of a republic of the elites is never repeated, a degree of direct democracy should be included. Looking to Switzerland, the Australian founders did this at Federation, but not going as far as South Australian premier Charles Kingston wisely proposed. The best solution would be to constitutionalise the common sense of ordinary people by entrenching binding citizen-initiated referendums and by re-asserting the Bill of Rights provision that the courts have no political role. On this the Swiss constitution provides a useful precedent—the Courts are specifically denied any power whatsoever to interpret the Constitution. The Swiss no doubt had seen what a disaster this can be. As anyone knowledgeable about the Australian situation would know.