Saturday 8 February 2020

The Supreme Court's judgment in Miller 2 was a travesty of justice, obviously

I was well aware, as I listened to Brenda Hale reading it out in her donnish voice live on my telephone, that the Supreme Court's second Miller judgment, the one ruling the prorogation of Parliament unlawful, was an appallingly unjust decision. I am delighted today, reading Charles Moore (soon to be a peer), that Professor John Finnis of Oxford, supposedly a greater academic lawyer than Lady Hale, has written a pamphlet saying so. 

I quote this precis of the pamphlet by Mr Moore (I hope he chooses the name of his Sussex village for his title rather than be plain Lord Moore, by the way - so much grander). I am not an academic or any sort of lawyer but the idea that prorogation is not a proceeding in Parliament is nonsense, because the Crown in Parliament is as much part of Parliament as either of the Houses.

'In his view, the Supreme Court judgment goes against our history and our law, and produces “a constitutional unsettlement”. Ignoring the arguments which the Divisional Court had already made the other way, it tramples over a central feature of our Bill of Rights of 1689, which protects political liberty by insisting that no “proceeding of Parliament” should be “impeached’ in a court.

'The Supremes danced round this problem by asserting that prorogation is not a proceeding of Parliament. As Professor Finnis sets out, this had never been successfully argued in any court in any Westminster-style constitution (ie the United Kingdom, Canada, Australia etc). It is rejected by Erskine May and all the great experts on the constitution. There is “no authority, no case law, no textbook” for last September’s judgment, says Finnis.

'Like other acts of the Crown prerogative which involve what the law calls “high politics” (as opposed to individual rights), it is, says Finnis, “a well-established legal rule that prorogation by the sovereign…is non-justiciable”. So The Supremes strutted in where all previous judges had feared to tread. If they feel free to forbid the prorogation of Parliament, they could equally destroy another Crown prerogative – the right to decide whether to dissolve it: they could prevent a general election. That really would have an “extreme effect upon the fundamentals of our democracy”.'

We must get rid of the Supreme Court. Please let's restore the Law Lords just as they were before Tony Blair wrecked the constitution, complete with wigs and gowns. What a great symbol that would be of restoration. Or if you prefer, counterrevolution.

1 comment:

  1. In 1919 the First Austrian Republic established the first dedicated constitutional court, the Constitutional Court of Austria, which however existed in name only until 10 October 1920, when the country's new constitution came into effect, upon which the court gained the power to review the laws of Austria's federal states.

    The Czechoslovakian Constitution of 1920, which came into effect on 2 February 1920, was the first to provide for a dedicated court for judicial review of parliamentary laws.

    Many countries do not have separate constitutional courts, but instead delegate constitutional judicial authority to their general court system.