The Supreme Court’s Ruling. Why Not Now Go All the Way – and Let Bercow Deliver the Queen’s Speech?

Another look at the Inglorious Revolution wrought on 24 September 2019, the day that what Dr Johnson called ' the ancient constitution of the state' was destroyed.

From ConservativeHome

By Paul Goodman

‘Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows’.

Those are the words of the Enacting Formula – the standard pattern of words which, with certain variations, precede the clauses of Bills at Westminster.  In a single sentence, they capture the meaning of Parliamentary sovereignty.

They clearly don’t say that the legislature is the only source of this sovereignty – in other words, of law-making power.  Rather, they tell a story.  It is one of that power being shared by the Queen, through the executive branch of government, with the legislature.

That’s why it’s said that we’re governed by the Queen-in-Parliament: it is the place where the monarch, her Government, and the legislature come together.  Parliament should work with harmony of a stately dance (come to think of it, “stately” is le mot juste), in which each dancer has his or her part to play.  Some of the most riveting steps in their movements came about because of the English Civil War. The dance continues to this day.

The best way of understanding the Supreme Court’s ruling on Tuesday is to grasp that it reads the dance very differently – and, frankly, wrongly. “As long ago as 1611,” its ruling declared, the court held that “the King [who was then the government] hath no prerogative but that which the law of the land allows him”.  The Court clearly has that civil war, and long-run up to it, very much in mind.

But the King (or, in this case, the Queen) is no longer “the government” – a truth that the learned judges seem to have forgotten as soon as they uttered it.  Government is now a shared exercise between “the Queen’s most Excellent Majesty” and those “Lords Spiritual and Temporal, and Commons”.  Or, to put it another way, Boris Johnson in no way resembles a Stuart Monarch.  Quite apart from anything else, Charles I did not offer the Roundheads the chance to vote him out of office.

Neither is Dominic Grieve John Hampden; nor Lady Hale, Sir Edward Coke; nor Dominic Cummings “Black Tom Tyrant” – the Earl of Stafford, Charles I’s formidable adviser, who was eventually sacrificed as a scapegoat.  If anyone thought they were.  Above all, this Gollum of a Speaker is not, repeat not, John Lenthall.

It is baffling that the highest court in the land so misunderstands our constitution – with more errors spawning from its first.  “[Parliamentary sovereignty] would be undermined if the executive could, through the use of the prerogative, prevent Parliament from exercising its power to make laws for as long as it pleased,” it ruled.

Once again, it conflates the legislature with Parliament.  Yes, MPs and peers are part of Parliament.  But so is the Queen – hence the Enacting Formula with which this article opened.  So, for that matter, are her Ministers.  They sit and speak and vote in the same chamber as backbenchers, because they are also MPs.  Do we really need to make the point that there is no separation of powers in our constitution?  If a lowly blog can understand this, why on earth can’t the Supreme Court?

Perhaps the answer lies in its title.  Ponder it again for a moment.  The.  Supreme.  Court.  Where does your mind travel to when you hear those words?  If you’re at all like us, the answer is “America”.  And there, of course, one does find the separation of powers.  Once judges have them, in the sense that they do in the United States, they become political.  Which explains why those nominated to America’s Supreme Court must face confirmation hearings.  And helps to demonstrate what is happening here.

Not so long ago, our judges were part of that ceremonious Parliamentary dance.  It was Tony Blair, with his characteristic tin ear for our constitutional music, who turfed out Law Lords out of Parliament and set up the Supreme Court.  Once you establish such a body, and look towards United States, American-type controversy is likely to follow.

In a curious way, then, the Court was acting explicably by making a judgement about the lawfulness of the Government’s prorogation with only a single reference to a particular statute.  By basing most of its case on principles rather than statute (contrary to usual practice), its judgement had a flavour of America – or, more precisely, of continental law, in which judgements are induced from abstractions, rather than Common Law, in which they are deducted from practice and precedent.  There, judges make the law.  Here, they discover the law.

Or did – until EU law, the ECHR, and concepts from continental law, such as proportionality, slowly coloured parts of our own system: for evidence, consider the growth of judicial review.  The Supreme Court is part of a bigger picture.  Perhaps these changes are desirable.  Maybe they aren’t.  But, either way, politicians since the Blair era have tended to stick their fingers in their ears and pretend that these changes aren’t really happening.  While Policy Exchange has pointed to the problem, by means of its Judicial Power Project, Ministers have looked the other way.

No wonder the Government’s collective response to Tuesday’s judgement has been a shambles.  Some Ministers want to leap forward – or at least sideways – and have America-style confirmatory hearings for judges.  Others want to go back to the future, scrap the Court and revive the Law Lords.  The Johnson Government is paying a price for the thoughtlessness of its predecessors.

In a nutshell, the Supreme Court’s ruling begins by misreading Parliamentary Sovereignty and thus ends by exalting one part of Parliament at the expense of the others.  So prorogation is something that is somehow done to MPs and peers “from outside” and “is not a proceeding in Parliament”.

However, as we have seen, the Queen and her Ministers are inside: they are part of Parliament.  Where does the Supreme Court’s logic take us?  Should Royal Assent end, because it is also “from outside”?  If so, what about the Queen’s Speech?  Why not send the Speaker up from the Commons, and let him deliver it instead?

It is tempting to mull the implications of the Supreme Court’s ruling, allow one’s imagination to soar, and picture a future in which the legislature alone “takes back control”.  Over six hundred MPs could have a go at negotiating treaties at once, or mastermind detailed battle plans from the green benches. And if some of them had no right to, because their party didn’t command a majority in the Commons, too bad.

If you find the prospect fanciful, ponder real life.  MPs actually are seeking to direct a treaty negotiation: that’s the point of the Benn Act.  Oliver Letwin has been like a shadow Prime Minister to their shadow Government, exercising control of the Chamber’s proceedings and timetabling.

But unlike a real Prime Minister, he can’t be held to account at the despatch box or before Select Committees. And unlike a real monarch, Bercow is unrestrained by convention – and apparently untouchable by the courts, too.

‘Be it enacted by the Speaker’s most Excellent Person, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows’. If this is the Supreme Court’s vision of the future, perhaps it ought to tell us.