UK democracy: a law of unintended consequences?

What we now apparently have in the UK is government by the courts. The ruling of the Supreme Court this week (24/9/19) has, in effect, ruled that we no longer have a constitutional monarchy and that courts can overturn the decisions of the government. According to the judgment handed down yesterday, the Queen’s Order in Council to prorogue Parliament was unlawful. The Prime Minister was judged to have misled the Queen by giving unlawful advice to her. I’m not a lawyer but surely this decision to agree to prorogation was agreed also by the Privy Council as well as the Prime Minister, not just the Queen. In addition, it was based on legal advice from the Attorney General, hardly a legal novice.  His interpretation of the law was apparently supported by other very senior legal figures as well.  Maybe I, as a Leaver, am so uninformed or dimwitted that I can’t understand this, of course.

Whether or not the unintelligent among us can understand this, the outcome seems to be that the Supreme Court, or any court beneath it, can now overturn any of the Queen’s Orders or, presumably, advice. According to the Privy Council website, the Queen can make orders by the Statutory route under any of the numerous powers contained in Acts of Parliament which give Her Majesty a power to make Orders, or by the Prerogative route. This latter route is taken under the inherent power of the Crown to act on matters for which Parliament has not legislated.

Orders in Council to agree to prorogation of Parliament are Prerogative Orders. Therefore, it seems to me, an individual identified as uninformed (among the more polite designations offered by some Remainers), that Parliament has never legislated, to date, for the prorogation process. With me so far?

But now, the Supreme Court seems to have legislated, in effect, by deciding that the Queen’s Order in Council is void and of no power because it was based on unlawful advice. Given that many other legal eagles had concluded the opposite outcome based on the same legal system and precedent, this ruling is open to discussion. This is a different matter to going against the ruling. But it seems entirely fair to be able to express disagreement with it.

Given that the Supreme Court has ruled that decisions taken on unlawful advice can be overturned, where does this place us with regard to Parliament’s ability to make and pass actual legislation? What will happen now when Parliament passes any future law and someone disagrees with it or claims that it was based on unlawful advice? Are we to be treated to the courts’ views on the legality of every new law? What is to stop people with a bottomless pit of money now challenging any existing legislation if they don’t like it or think they can find something unlawful in its making? This case – about the prorogation – was judged to be ‘justiciable’ rather than political. How prorogation was interpreted as being outside of parliamentary activity, I don’t know.  Does anyone? But if courts can now over-rule parliamentary or political decisions and make new law, where does the line between the roles of parliament (political) and the judiciary (impartial and non-political) lie?

Does this ruling not seem to overturn both the role of the constitutional monarchy and Parliament and replace it with a ‘monarchy’ based in the unelected courts and the legal system? If a system has worked well since 1689, why change it now? And how does this decision fit with the Bill of Rights (1689), which clarified the roles of the monarchy and Parliament and their respective powers? Where is the debate about this, which has been our foundation since 1689?

Baroness Hale was at pains to say that the ruling was nothing at all to do with Brexit. While this may technically be the case, and we have to believe her or be accused of maligning the judiciary, one wonders why a crowd of well-known Remainers were then seen dancing on the steps of the court celebrating their ‘win’ – despite claims of ‘no winners’ made by them to the media. Besides this ill-advised spectacle, one also wonders how the judges were able to decide on the motives of the PM and the government in proroguing Parliament but were content not to consider the motives of those bringing the cases. Again, I may be being dimwitted here, but it is not uncommon to read in the media about cases where those on the Bench dismiss legal actions as ‘vexatious litigation’. How does this work? If someone could explain it to me, I’d like to know.

Once more we are treated to cries of ‘We’re defending democracy’ from the very people who do not accept the result of the biggest turn-out for a referendum this country has known in its history. It’s no good moving the goalposts after the event and claiming that nobody voted to leave with No Deal. People voted on what they were asked for – leave or remain.  This parliament has failed to implement that decision and is incapable of doing so as it stands.  Moreover, elements within it are apparently determined to prevent it from doing so unless it is done how they want it to be done. Yet these elements refuse to call for an immediate election.

What is happening to the once-great democracy that was the United Kingdom? Has all sense of balance and decent behaviour been abandoned? Are we still, along with the United States, held up as the benchmark by which functioning, effective democracy is measured around the world? How have we got to this appalling state of affairs?

Election, anyone?

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