From the National Review
By Michael Brendan Dougherty
The United Kingdom’s supreme court ruled today, unanimously, that the five-week prorogation of Parliament by the queen under the advice of her prime minister was unlawful. The judgment is quite clear that there is no law or statute on which their ruling is based. When it gives examples of timelines put on the prorogation of Parliament, all the examples are done by statute, not by intervention of the courts in the absence of a statute. Effectively the prorogation was abrogated. By abrogating it, the supreme court is announcing it has the ability to judicially review acts of the queen in Parliament.
The cheering for the ruling is being done entirely by those who want to frustrate Brexit. And that’s natural: Remainers are willing to destroy what’s left of the British constitution to remain in the transnational European Union that was also subverting the British constitution.
Remainers are happy to call Johnson’s government criminal, or at least unlawful. And yet, the Remain majority that opposes him in Parliament won’t allow the very thing that is supposed to happen when the executive loses confidence of the majority: the bringing down of the government. Either a new prime minister is installed or there is a general election that produces an executive who has the support of the majority. This has not happened, because the Liberal Democrats will not support a government led by Labour’s Jeremy Corbyn. Nor does Labour want to go to an election, because polls show 1) that Johnson’s Tories are likely to win it and 2) that the Lib Dems may cut into Labour’s own strength.
The result is a continuation of constitutional crisis, one in which the majority of Parliament (the legal sovereign) is routinely voting down the prime minister’s business while empowering the supposedly neutral speaker of the House, John Bercow, to break all precedent and run Parliament’s business on behalf of a Remainer majority that he openly sides with.
That Remainer majority is imprisoning Boris Johnson as prime minister. Its continued course of voting against the executive while keeping it in place is a symbolic rejection of the political sovereignty of the British people.
An understanding of the United Kingdom’s constitution in continuity with what came before would have forced the courts to rule along the lines that Lord Doherty did in Scotland, before higher courts intervened: that the issue was non-justiciable. “In my opinion, there has been no contravention of the rule of law. Parliament is the master of its own proceedings,” he wrote. “It is for parliament to decide when it sits. Parliament can sit before and after prorogation.” Doherty noted that the prorogation was a “matter of ‘high policy’ and political judgement” that “could not be measured by legal standards.”
Instead the court invented a limit to prorogation where there was none in the statutes, thus reintroducing perhaps ten days of parliamentary debate to the longest sitting Parliament in living memory — and one of the least accomplished (see: constitutional crisis, above). Effectively, this supreme court, which is barely a decade old, has invented for itself the right of judicial review, meaning Parliament is no longer an unencumbered legal sovereign.
That fits. In the Claremont Review of Books, Christopher Caldwell wrote that judicial review was at the heart of Remainer sentiment. “In a global age, judicial review is a tool that powerful people expect to find in a constitution,” he wrote, “in the same way one might expect to find a hair dryer in a hotel room.”
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The European Union had been bringing such a system to Britain subtly. He writes:In the 1980s, British judges began finding that parliamentary laws had been invalidated by later British laws — a normal and time-honored process, except that these new “British” laws had been imported into British statute books not by legislation but by Britain’s commitment to accept laws made on the continent. [Political scientist Vernon] Bogdanor, who is a Remainer and a defender of human rights, does not necessarily condemn this development. But it meant that, through the back door, judicial review was being introduced into a constitutional culture that had never had it.Today is the day that Remainers tried to plant judicial review firmly into the British constitutional soil. While clamoring that they are saving democracy, those who are resisting the outcome of the 2016 referendum on membership in the EU are moving power further away from democratic accountability, and toward a recently instituted group of lawyers whom no one can name and who are not appointed in a politically accountable way, as in the United States.
As I said, it fits.