September 24, 2019


The British Supreme Court's decision is a constitutional outrage (Charles Day, September 24, 2019, The Spectator)

In theory, judicial review is a good thing. In theory it is a way of forcing bad bureaucrats to do their job. The Australians, with remarkable prescience, worried judicial review might be used inappropriately, so they constrained it by act of parliament. We didn't. I think we clearly should have done. Because judicial review has been used, incrementally, to erode and alter the constitution of our country - without most of us noticing and without any of us being asked. There was a convention that the common law (judge made law) only changed little bits of the law. As of today that convention is dead.

It is because of the incremental changes made by judicial review since the Nineties that the Supreme Court can declare this:

'Time and again, in a series of cases since the 17th century, the courts have protected Parliamentary sovereignty from threats posed to it by the use of prerogative powers, and in doing so have demonstrated that prerogative powers are limited by the principle of Parliamentary sovereignty...'

What that means is that prorogation can be limited by statute and the courts would enforce that statute. I doubt anyone disputes that. What it does not mean, yet what has happened, is that in the absence of such a statute, the 'Supreme' Court can step in and invent one. So lawyers and judges have, step by step, decided to give themselves more and more power.

No one expected them to do what they did today. No one expected it to be unanimous - which perhaps hurts the most. Most of us expected them to say the matter was for Parliament, not for them. As indeed Lady Hale might have noticed from the very scant list of examples she gave in paragraph 44 of her judgment - all examples of constraining prorogation are statutory.

It was a point made in open court when Lord Pannick was questioned, just after the embarrassing issue with the bundles. No example of the court controlling prorogation of parliament can be found in this country - or in any common law country. Until today.

The 11 justices have taken it upon themselves to assume the power of Parliament and by common law, make a statute. That is a far bigger constitutional outrage than Boris sending parliament on holiday over conference season.

Forget Boris, this was within Queen Elizabeth's prerogative.

Posted by at September 24, 2019 3:41 PM