Tag: Judicial-Activism

Boris’ Interim Report: Must Try Harder

PM Boris Johnson’s performance against the eight benchmarks set him on appointment has been mediocre at best  

Note: Longer version of the article originally published at The Conservative Woman on Wednesday 04 December 2019

At the end of last July, just after Boris Johnson had been elected leader of the Conservative Party and appointed Prime Minister, I tried to speculate on the general direction of travel which his government would follow, not only on Brexit, but on other key policy issues.

Would he follow the robustly anti-leftist, pro civil liberties, free-trade, free-market, tax-cutting rhetoric of his leadership campaign? Or would he actually turn out to be more in the ‘Wet’ One-Nation tradition of ‘liberal’-‘progressive’ Conservatism? To serve as a benchmark, I suggested eight key tests by which we might judge whether he would delight or disappoint us.

Now, some might say it remains too early to judge: that the 5 months he has been in office have been overwhelmingly occupied by Brexit to the exclusion of virtually everything else, and that only after a period of government when it was no longer the dominant, almost only, issue would it be possible to make a more accurate assessment.

Well, maybe. But on the other hand, we do now have the two documents which will define the Johnson premiership in its entirety: firstly, his revised Brexit Withdrawal Agreement and Political Declaration and secondly, the Conservative Party’s election manifesto. So with these plus the experience of the past five months as a reference, how has he measured up against each those eight tests?

Will he ensure, come what may, including if necessary by proroguing Parliament to prevent its 70 per cent-plus Remainer majority stopping Brexit, take us out of the EU on 31 October, on a WTO No-Deal if Brussels maintains its intransigence, and with Britain as thoroughly prepared for it as possible?

This article isn’t the place for a detailed dissection of the pros and cons of Johnson’s revised Brexit deal. For me, the most persuasive summary of it is the one which acknowledges that, while it is far from ideal, it nonetheless is a distinct improvement on its predecessor and so probably just about good enough to make it supportable. But although the answer to the test question is clearly “No, because we have still not left the EU“, a reasonable case can be made that this was not for want of trying. 

On the legislative side, right up until the moment it was dissolved in early November, Johnson was faced with a majority-Remainer House of Commons, including members of his own party, which was not only determined to thwart it and to leave no avenue of Parliamentary procedure unexploited – however arcane and devious, and however potentially constitutionally illegitimate – in pursuance of that aim, but was also resolved to deny the electorate a chance to vote it out and elect a fresh Commons.

On the judicial side, he was faced with a blatantly politicised and judicially-activist legal Establishment which, by ruling the Prorogation of Parliament unlawful was prepared in effect to re-write the Constitution by arrogating to itself the power to amend it by inserting its own opinion into the political process.

Will he take, or authorise Dominic Cummings to take, an axe to the higher reaches of the Whitehall civil service machine which has proved so unwilling to accept our decision to leave the EU, and so hostile to implementing it?

There seems to be little evidence of it. Despite the misgivings surrounding Cabinet Secretary Sir Mark Sedwill’s role, as May’ national security adviser, in the sacking of Gavin Williamson as Defence Secretary and informed speculation during the Tory leadership campaign that he would not long survive a Johnson premiership, he remains in place.

Although the Svengali figure of Olly Robbins who was May’s chief Brexit negotiator has left Whitehall, and the Brexit negotiating team was slimmed down, Johnson’s current Europe adviser is something of a former Brussels insider. While it’s obviously very useful to have someone familiar with the backrooms of Brussels, against that must always be the fear that he may have been institutionally captured.

Will he abrogate Britain’s accession to the UN Migration Compact, cynically signed by May largely under the radar in December 2018?

As far as I can see, he has not even mentioned it. In fact, the indicators appear to be pointing towards a significant dilution of his leadership campaign promises on reducing the scale and raising the quality of inward migration, despite the manifesto pledges about an Australian-style points system. Indeed, he has arguably retreated further.

In the Daily Telegraph of 14th November, the Editor of The Spectator, Fraser Nelson floated the idea of a Government amnesty for illegal immigrants. Given the close links between the magazine and Number Ten, I suspect it’s unlikely that the latter was wholly unaware of the proposal before publication. It could have been designed to test the waters of public opinion, or perhaps even to engineer an adverse reaction, so as to justify a harder policy line with which to chase ex-Labour voters in the Midlands and North.

The two main problems with such an amnesty are that, firstly, it rewards illegality – what signal does it send to the law-abiding migrants who have taken the trouble to establish themselves here legally? – and that, secondly, it acts as an incentive to anyone currently contemplating migration into Britain, illegal or otherwise, to do it before more robust controls are implemented.

In addition, and as Migration Watch’s Alp Mehmet explained at The Conservative Woman on 27th November, in a commentary of all four main parties’ manifestos, it is perhaps the Conservative Party’s, deferring to the financial strength of big-business on the one hand and the powerful Woke pro-immigration lobby on the other, which especially represents a betrayal of its Leader’s previous promises.

Will he instruct the new (Remain-voting) Defence Secretary Ben Wallace to unwind all the surrender to the EU of control over policy, rules and structures which govern the future of our Armed Forces?

Here the picture, albeit still mixed, is slightly better, although May’s deal was so egregious in this area that it never constituted a particularly high bar to clear.

As Briefings for Brexit’s and Veterans for Britain’s Professor Gwyn Prins’ comprehensive analysis shows, closer integration with the nascent EU Defence Union, even under Johnson’s modified proposals, still carries significant risks for future co-operation and intelligence-sharing with our non-EU Five Eyes Alliance partners, and although we do have an opt-out mechanism, this is exercisable only on a case-by-case basis.

Professor Prins makes a persuasive argument, however, that the overall geo-strategic objection to UK participation in the accelerating EU Defence and Security integration remains: that the project’s fundamental raison d’être is ultra-federalist and anti-Anglosphere in concept and purpose, being designed to detach the EU from the NATO and wider Atlantic Alliance. Remember, France’s Macron has declared NATO “brain-dead”, and implied that the EU sees the USA as among its own likely future enemies.

Will he abandon the futile drive for expensive Green renewable energy, concentrate on developing alternative energy sources that promise reliability of supply at lower cost, and formally abandon the Government’s ill-informed, scientifically-illiterate and economically-damaging commitment to net zero emissions by 2050?

In a word: No. Once again he has gone almost in the opposite direction. In arguably one of the most abjectly cowardly reversals of a decade-long policy seen in many years, Johnson has resolved to ban fracking, ostensibly in deference to what is a cynical misrepresentation and exaggeration of the “earthquake” risk, but actually because the Tories lack the political courage to oppose the well-funded Green eco-propaganda campaign against cheap, reliable energy.

As if this was not bad enough, the Tories have signed up to the same net-zero emissions target as all the Green virtue-signalling main parties, just at a slightly slower rate, with a dearth of consideration of the long-term opportunity cost of spending upwards of £1 trillion on attempting to retard, by a few months, whatever would almost certainly happen regardless.

Will he commit to rolling back substantial parts of Theresa May’s politically-correct, divisive left-‘liberal’ SJW agenda, like mandatory gender pay gap reporting, ethnicity pay disparity audits, and gender-change via box-ticking self-declaration? 

Johnson has been conspicuously silent on this since his accession to Number Ten, and the 64-page Tory Manifesto – long on worthy aspirations and anodyne platitudes but short on specific policy pledges which could be remotely controversial – which has been variously criticised as “defensive” and “safety-first” contains no references to these issues whatsoever. Given that this was the focus of a substantial part of the condemnation heaped on his predecessor, we have to assume that silence in this case equals acquiescence.

Will he guarantee to address the pressing issue of voter and electoral fraud, in particular the vulnerability of the lax postal-vote system to rampant abuse, and Leftist objections to making ID at the polling booth mandatory?   

Johnson pledged via the most recent Queen’s Speech to introduce mandatory voter ID to help combat electoral fraud – to a predictable chorus of specious objections from the politicians of parties which currently appear to benefit most from it, and their media cum quango-state backers – and this has been included in the Tory Manifesto, along with as yet unspecified measures aimed at “stopping postal vote harvesting”. This is at least a start, although much more needs to be done.

Will he address urgent constitutional reform, in particular the position of the unelected, anti-democratic House of Lords, the corrupt and cronyism-ridden Honours system, and funding from tax the current political activities of former Prime Ministers who, despite being rejected by voters, still want to remain active in public life? 

Not much, if anything, has actually been done in this area, though in fairness, little would have been possible with a gridlocked majority-Remainer, anti-Tory Parliament. The Tory Manifesto is more promising: it does at least pledge to repeal the disastrous Fixed Term Parliaments Act (FTPA). But both the role of the House of Lords and the relationship between the Executive, the Legislature and the Judiciary are to be referred to a new Constitution, Democracy and Rights Commission, which looks suspiciously like kicking the issue into the long grass.

It would have been much better to have adopted Lawyers for Britain’s Martin Howe QC’s proposal for a Restoration of the Constitution Bill to replace the current judicially-activist Supreme Court and repeal the egregious Benn Surrender Act usurping for Parliament the proper executive role of government, as well as repealing the FTPA.

On reforming the Honours System and curbing funding for the ongoing political activities of former prime Ministers, there has been neither mention nor action. 

Overall, then, Johnson’s is an underwhelming performance so far, notwithstanding the hype surrounding his “great new deal” and the constant “get Brexit done” soundbite. Those of us of a conservative – but not necessarily Conservative – disposition are, I think, entitled to start asking some serious questions about precisely where the Johnson-led Tories are going, not only on Brexit but on much else besides.

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Was this the week UK Democracy died?

Note: This article was originally published at The Conservative Woman on Saturday 28th September 2019

From the instant Remainer reaction of knee-jerk outrage when last Tuesday’s Supreme Court Judgment, ruling that the prorogation of Parliament had been unlawful, was criticised as a “constitutional coup d’état”, one always suspected that there was actually something in that criticism.

SCoUK delivers ruling on Prorogation

That the Supreme Court’s Judgment reversed the earlier verdict of the High Court that prorogation was essentially political and thus not justiciable – a verdict reached by a panel comprising no less than the Lord Chief Justice, the Master of the Rolls, and the Chairman of the Queen’s Bench Division, all of whom rank superior to Supreme Court Judges in the Judiciary – did nothing to ameliorate it.

As the week has gone on, that suspicion has grown. As one of the better analytical commentaries showed, the Judges took it upon themselves to rectify an absence relating to prorogation in the body of Parliament-made Statute Law by first arrogating to themselves the law-making power vested in the elected legislature, and then making it themselves in effect under Common Law. Previously, all constraints on the Executive’s prerogative power of prorogation were statutory.

Moreover, by effectively substituting its own judgment (of what constituted ‘good political reasons’ for prorogation) for that made by the Executive, and then evaluating the actual prorogation against its own criteria, the Supreme Court inserted itself into the political process. But as Lawyers for Britain’s Martin Howe QC pointed out, for a court to determine whether an issue of high government policy is good reason or not presents it with an insuperable difficulty. How can it know what was or was not in the government mind?

SCoUK judges constitutional coupThe  implications for the Constitution, already creaking from a Remainer Parliament’s tangible unwillingness to accept and implement the outcome of the 2016 EU Referendum, and democracy itself, are momentous.

As Spiked’s Jon Holbrook says, there is now no political issue on which the judges are not prepared to rule: if an exercise of the prerogative power to prorogue Parliament can be set aside by judges, then almost any political decision can be. The effect of which is, as Gerald Warner so trenchantly explained at Reaction, is, to all intents and purposes, to deprive Britain of a functioning government under a constitutional monarchy. In the words of the Daily Telegraph’s Philip Johnstone, Britain has become a republic with Bercow at its head.

2017 Remainer ParliamentWhich brings us back to our dysfunctional current Parliament. Having passed the Benn-initiated Surrender Act which, by requiring an Article 50 extension request be submitted should no deal be agreed with the EU Council meeting on 17-18 October, was effectively both an open invitation to the EU not to agree any deal, and a total shackling of both of the Prime Minister’s negotiating hands behind his back, what will it do next?

Self-aggrandising BercowI suspect Parliament’s Remainer-Leftist so-called Rebel Alliance will, with Speaker Bercow’s enthusiastic collusion, seize control of the Parliamentary agenda via Standing Order 24 and then, again using an accelerated procedure to ensure all three Readings in one day, amend the Benn Surrender Act (or Appeasement Act, if you prefer).

The amendment would be to bring forward, to a date before the EU Council meeting on 17-18 October, the date by which Boris has to come back to Parliament with a deal the Commons would approve. The effect of this, of course, would be to tie his hands even more.

The additional baleful consequence which is starting to be dimly discernible in the wake of the Supreme Court’s ruling is this: if (as I personally believe they have) its Judges have indeed carried out a constitutional coup d’état by arrogating more political power to themselves – by in effect inventing a convention that Prorogation is justiciable, even though Parliament has passed no Statute limiting or restricting Prorogation – then one wonders whether even Royal Assent to bring a Bill into law, or more crucially perhaps, Royal Assent to a dissolution of Parliament, might itself be justiciable.

The terrible spectre of, in extremis, a Remainer Parliament legislating to amend or repeal the Fixed Term Parliament Act so as to perpetuate its own existence, followed by the refusal on the advice of the Prime Minister of Royal Assent to it, being itself justiciable and liable to be overturned by a politicised Supreme Court, is no longer unthinkable. At that point, democracy is dead.

With this week’s Supreme Court ruling, mass-participation democracy has in effect ceased to be the foundation of our political society: it has become, instead, merely an obstacle to be circumvented by the anti-democratic, either those in Parliament or those with the deepest pockets and most influential connections, whenever they are defeated in a popular vote.

SCoUK Lady Brenda Brooch-SpiderThat the central political issue of our time is now that of The People versus The Establishment has become starker than ever. By its ruling, the Supreme Court has ensured that the next general election will be about one thing and one thing only: The People against Parliament and The Establishment.

A self-respecting Labour Party would be up in arms about this. Keir Hardie and Tony Benn must be spinning in their graves. The purported party of the working-class, cheering on the well-connected and the monied as they overturn the biggest democratic mandate in UK political history.

There has been much lofty comment this week, mainly from the ‘Liberal’-Intellegentsia, about a proper re-setting of the delicate balance of power between the Monarchy, the Government and Parliament which the Supreme Court’s Judgment presages. There has been much also, from the same sources, about the reinforcement of Parliamentary sovereignty.

Less mentioned, curiously, has been the awkward fourth element in our political settlement. The People, in whose name the aforementioned triumvirate of powers professes, unconvincingly, to govern, but from whom Parliament derives its sovereignty in the first place.

Earlier this week, Brexit Party MEP John Longworth wrote lucidly about how the conflict between two competing philosophies of government and society, a conflict dormant but still unresolved since the Civil War, has been revived by by the Brexit vote and its aftermath. It is worth reading.

It’s worth recalling, too, that full universal adult franchise was not achieved until 1928, despite the Great Reform Act being dated 1832, such is successive generations of the Establishment-Elite’s determination not to yield its political power to the demos it considers unworthy to exercise it. That Democracy lasted under 100 years before we reverted to oligarchical rule is no longer inconceivable.

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