Is the Supreme Court increasing its own power?

Proceedings in the Supreme Court are typically being reported as if judges are making an impartial assessment of the constitution. It would be more true to say that they are asking whether or not to give themselves more power. Perhaps they will uphold the established constitution, or perhaps they will concoct sophisticated legal-soundings reasons for appropriating the powers that lawfully belong to parliament and the people themselves.

Only recently, the most senior judges understood clearly what was at stake. Lord Bingham, who retired as a judge in 2008 having been Master of the Rolls, Lord Chief Justice and Senior Law Lord, said in his book The Rule of Law, that:

‘The British people have not repelled the extraneous power of the papacy in spiritual matters and the pretensions of royal power in temporal in order to subject themselves to the unchallengeable rulings of unelected judges. A constitution should reflect the will of a clear majority of the people.’

Constitutional changes, he concluded, ‘should be made in accordance with that will or not at all’. His view is central to the Universal Declaration of Human Rights of 1948, which says that ‘The will of the people shall be the basis of the authority of government’.

Historians have shown that this notion has long been part of our political culture. Citizens in the eighteenth century, when only a few had the vote, who were dissatisfied with Parliament did not appeal to judges. Instead, they petitioned the King, not to overrule Parliament, but to dissolve it to force an election so that public opinion could assert itself. For example, in 1773 the King was petitioned in protest at the exclusion of the infamous John Wilkes from Parliament. The petitioners argued that their elected representatives: ‘who were chosen to be the guardians of our rights, have invaded our most sacred privileges … We therefore… supplicate your majesty to employ the only remedy now left by the Constitution, the exercise of that salutary power with which you are entrusted by law, the dissolving of the present parliament.’

Already a subscriber? Log in

Keep reading with a free trial

Subscribe and get your first month of online and app access for free. After that it’s just £1 a week.

There’s no commitment, you can cancel any time.

Or

Unlock more articles

REGISTER

Comments

Don't miss out

Join the conversation with other Spectator readers. Subscribe to leave a comment.

Already a subscriber? Log in