Supreme Court is not just considering whether Boris Johnson’s suspension of parliament was legal, but also deeper questions about who rules the UK, says Bill Jamieson.
So here we are: a Supreme Court ruling that could bring down a Prime Minister, realign the relationships not only between voters and parliament and parliament and the executive, but also between the constituent parts of the United Kingdom.
Who rules? What is the law? What makes law legitimate? Should resort to the law be limitless, or have boundaries? How is membership of the Supreme Court itself to be determined?
We have been propelled to these questions by the profoundly divisive issue of Brexit. But longer and deeper changes are also at work. For there are latent questions here that have now come to the fore as to the scope and reach of law – a relentless, incoming tide over recent years, much of it necessary and welcomed, but raising wider concerns that compel attention.
We look to law for the administration of justice and the settlement of grievances. And the vast majority seek to obey the law. But when courts conflict, which law should we obey?
Resort to the Supreme Court has arisen after three senior judges in Scotland reached a different conclusion from three senior judges in England and Wales. Scotland’s highest court ruled the suspension of parliament was unlawful and designed to “stymie” MPs. However, the High Court in England previously ruled the opposite: that the suspension was “purely political” and therefore “not a matter” for the judiciary. Let’s assume here that the judges in both courts have ruled without bias, concentrating on the legal arguments. But these being so, this development shows that “the law” can still mean different things to different courts. For it is so frequently interpretative, and interpretations can shift with changes in thought and prevailing attitudes.
The judges in Edinburgh went further to question motive. But this can be a highly contestable area of conjecture and speculation. What are the rules of evidence guiding questions as to motive? Can motive always be proven?
What makes the law legitimate? It is one thing to determine what the law is. But it requires acceptance and observance of the broader community for it to be enforceable. Law that is not observed, or which is found to be defective or unworkable, can undermine the broader “rule of law”.
Who appoints the judges? And to whom are they answerable? In the US, Supreme Court Justices are nominated by the Senate, then the President appoints the justices. Therefore, the executive branch appoints justices. This procedure can be highly controversial with constant and continuing questions as to bias, suitability, religion, ethnic and racial background, etc.
Would such a system be acceptable in the UK? Here the judges of the Supreme Court are appointed by the Queen on the advice of the Prime Minister, to whom a name is recommended by a special selection commission. The PM is required to recommend only this name to the Queen and not permitted to nominate anyone else.
The selection commission is made up of the President and Deputy President of the Court, and a member each from the Judicial Appointments Commission. This can be open to the charge of self-selection and to the institutionalisation of a closed set of attitudes.
Might the Supreme Court ruling be challenged by an appeal to the European Court of Justice? A national court may suspend proceedings and ask the ECJ questions relating to European Union law to which the national court believes it needs the answers. After the ECJ deliberates, the national court resumes its proceedings and gives its judgment in the light of them. The ECJ normally takes about 16 months (!) to give a ruling, although it might fast-track a case raising fundamental questions about Brexit. But in barely a month?
The issue here is about the ‘royal prerogative’, which allows the executive to conduct international relations, including decisions relating to international treaties. But prior case law makes clear that the prerogative cannot extend to taking away rights conferred by Parliament. The High Court ruled that this is what would have happened if the executive had invoked Article 50 without parliament’s approval since rights are conferred by the European Communities Act. It would be surprising if the Supreme Court would consider suspending proceedings and ask the ECJ for guidance. But it is in a tight and highly charged political spot.
What of the ever-increasing writ of law? Jonathan Sumption, who gave the Reith Lectures this year, raised troubling questions on the expanding empire of law. For it now extends into almost every corner of human life: 50 volumes of statutes, 30 volumes of supplements (12,000 made by EU law). In 2010 alone, 700 new criminal offences were created. Family courts now extend into every aspect of the well-being of children.
Complex laws enforced by tribunals regulate the conduct of foreign policy. Army deployment is now a sphere of judicial interpretation. And then there is the ever-expanding panoply of human rights codes and scope for judicial regulation.
All told, Sumption, calculated, in 1911 there was one solicitor in England for every 3,000 people. Today there is one for every 400 – a sevenfold increase. Can every human problem and moral dilemma require a legal solution? Should the law continue to extend and prescribe in areas where citizens previously had choice and discretion? What are the limits, if any?
The long-term problem with this is a weakening of the myriad of voluntary social associations that previously governed many aspects of socialisation and behaviour: a corrosive wearing down, not just of social control but individual responsibility – personal judgement and behavioural change.
There is barely a problem now that is not immediately engulfed by calls for greater intervention, or larger agencies, or tighter inspection or more government – and especially more government.
Whichever way the Supreme Court rules, the storm is unlikely to abate. Parliament and executive will continue on a collision course unless and until an election is agreed – and even then, the outcome, and any further referendum, may not be acceptable to the losers – as the Liberal Democrats have made clear.
And whatever the judgement, the case for Scotland’s independence is likely to be strengthened: validation if the Supreme Court rules in favour of Edinburgh; further grievance if it does not. This is far more than a battle over prorogation but a profound challenge of legitimacy – executive, parliamentary, legal and popular. So, who rules?