Tag: Law

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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A Matter of Law and Liberty

The EU Referendum debate has not paid enough attention to the risk to our liberty-based legal traditions implicit in a Remain vote

Post-Brexit trade deals of varying merit. Immigration. The effect of a Brexit on the UK economy. These are the matters that have dominated the EU Referendum debate.

But the list contains one glaring omission. Almost nowhere has there been discussed the risk that a Remain vote, and its near-certain consequence of deeper integration into the EU, poses to the individual-liberty based English legal tradition.

EU legal gavelBecause part of the EU’s overall aim is explicitly to create a specifically EU corpus juris  and what it openly calls a “common legal space”: an expanding both geographical jurisdiction and body of law applicable within it, made by, and administered by, the EU at supranational level.

As ever with the democracy-averse EU, though, the project proceeds both by increments and by stealth, with its ultimate objective not disclosed, because it knows that, were it to be openly proposed in one fell swoop, the voters of member-states would reject it out of hand. But its aim is nothing less than a body of pan-EU law will eventually supplant that of nation-states.

This poses an especially enormous problem for the UK, because of our fundamentally hugely-different legal tradition. Our common law grew from the ground up: it developed through individual judges adjudicating on the individual real-life cases brought before them, weighing the facts on the ground, and making decisions which became precedents over time. Indeed, much of our statute law enacted via the legislature, rather than by judicial decision, has traceable common-law roots.

economic-freedom-index-world-2010_mapThe common law, based on individual liberty, enforcement of property rights, freedom of contract, separation of legislature and judiciary, and protection of the individual from the arbitrary caprices of state and government, is arguably our greatest-ever export. That the Anglosphere countries whose legal systems are based on it have consistently formed some of the freest and most prosperous societies on the planet isn’t an accident, but a discernible consequence of it.

Continental countries, in contrast, have to a much greater extent opted for an entirely different legal tradition of codified law, more often originating in the rarified air of abstract political philosophy, rather than grounded in the gritty, often untidy, reality of peoples’ actual lives, interactions and contracts.

The Continental legal tradition reflects a vision of law, liberty, personal rights, and crucially the relationship between state and individual, that is elementally inimical to our common-law and liberty-based tradition: a conflict summed up in the most frequently observed distinction that in the English tradition you may generally do anything which is not specifically prohibited, as opposed to the Continental tradition, where you may generally do nothing that is not specifically permitted.

Yet it’s that Continental tradition that informs the legal systems of the vast majority of EU member-states and which the EU’s corpus juris will overwhelmingly reflect. That shouldn’t be surprising: the EU is, after all, nothing if not a deliberately statist, top-down, technocratic, democracy-circumventing project, and for its legal system not also to conform to that philosophy would be an astonishing inconsistency.

Scales of Justice EnglishBut it’s into that illiberal tradition that a vote to Remain in the EU will consign us. Or, more likely, condemn us. In prospect are the subsumption of some the most cherished institutions and protections of our English common-law liberty – habeas corpus: the right to know the charges arraigned against you: the right to expeditious justice: the right to face your accusers in public court: the right to be tried by a jury of your peers, not by state-appointed judges – into the Continental legal tradition where these are either absent, muted, or susceptible to being set aside on the grounds of State expediency.

The law of the jurisdiction of England and Wales, whether common law or statute, doesn’t belong to MPs, much less to Ministers or Government. It belongs to us, the people. When we send MPs to Westminster, we don’t transfer ownership or possession of our law to them: we merely delegate them temporary custody of it and political responsibilty for its administration – nothing more. The law of England and Wales is not the exclusive property of transient Government or MPs to jettison, abandon or give away to another polity, without our specific consent.

Anglosphere 1We aren’t “European”. Our core values, beliefs & legal traditions give us far more in common with our Anglosphere first cousins. The Continental tradition of codified law & centralised statism is fundamentally inimical to Anglosphere ideas of freedom & liberty. Throughout our history, we’ve chosen different solutions to these fundamental questions than have our European neighbours: solutions developed ground-up, rooted in individual liberty & lived experience, not derived from abstract theory of political philosophy.

It’s that rich heritage that we still have a couple of hours to retrieve and re-energise.

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