Winner of the New Statesman SPERI Prize in Political Economy 2016

Saturday 14 September 2019

Why the Supreme Court must protect our constitution

This is a very short post about a critical matter. It will not be a 'on the one hand, on the other' type of discussion because there is one overwhelming argument. It is about protecting our parliamentary democracy, a democracy that in one area in particular relied on norms of behaviour that have now been broken. The Prime Minister has shut down parliament for his own political reasons, and the only institution that can stop both that and a Prime Minister doing it in the future is the UK’s legal system.

According to David Allen Green, Scottish judges are less disinclined to get involved in political matters than English judges. If this is correct, then the decision of three senior Scottish judges that Johnson had lied to the Queen in asking to suspend (prorogue) parliament may be overturned. That, to put it plainly, would be a disaster for the UK constitution.

Why am I sure parliament was suspended for political reasons? Because shutting down parliament for 5 weeks is not necessary before a Queen’s Speech. The excuse that parliament normally suspends itself for the party conference season will not wash because (a) Johnson knew full well parliament was thinking of not doing so because of the gravity of the current situation, and (b) it was suspended well before that season. The three top Scottish judges also thought the motivation was clear. 

Why is this so important? The reason is obvious. If the executive can suspend parliament whenever it likes, for purely political reasons (it doesn’t like what parliament is doing), then the executive have the power to end our parliamentary democracy. First it is for a few weeks, and then it is for a few years. It is simply nonsense to say that this is a political matter, because politics has been shut down. Parliament cannot even vote no confidence in the Executive because parliament has been suspended. The argument that the law should not get incolved in political matters does not wash on this occasion.

The first best solution to this loophole in our constitution is to do what other countries do, and let parliament vote on its suspension, much as it does if it wants a recess. But until that happens, our courts are the only line of defence against a Prime Minister who suspends parliament against its will for his own political reasons. If the Supreme Court cannot defend our constitution when parliamentary politics is shut down, who can?

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