Illustration by Hannah Robinson
We are living through perhaps the most significant time for the development of our unwritten constitution since the 1688-9 “glorious revolution” which laid the foundations for our (and many other) modern democratic state(s). Over the last two years we have seen a massive shift in power away from the executive and to the judiciary. This marks a dangerous departure from the norms of our constitution and democracy may suffer as a result.
Before the establishment of the Supreme Court in 2009, the highest court in the United Kingdom was the Appellate Committee of the House of Lords. This was a constituent part of the “Crown in Parliament” (the formal name for our system of government) and so did not consider itself above any of the other branches of government. It therefore tended not to interfere in the ability of Parliament to pass any laws it saw fit or the royal prerogative powers exercised by the executive, such as prorogation and the ability to enter into and withdraw from international treaties. That all changed with the establishment of the Supreme Court which had no clearly defined limits to its power.
With a majority in Parliament opposed to the will of the people as expressed in the 2016 EU referendum, the stage was set for a power grab by the judiciary against the executive, which was committed to implementing the result of the referendum at all costs. It began in January 2017 when the court ruled that the executive no longer had the power to exit an international treaty without the consent of Parliament, thus effectively eliminating a prerogative power. Last week’s judgement made something illegal when it wasn’t before; when Geoffrey Cox advised the Prime Minister he could prorogue parliament he was right until the Supreme Court moved the goalposts by ruling in an area where it had not done so before. Now there is talk of the Supreme Court sending the Prime Minister to jail if he doesn’t abide by the Benn Act and request an extension to Article 50.
Alexander Hamilton argued that the judiciary would always be the least dangerous branch of government; I must disagree with that assessment. A democracy can only function if the powers of unelected judges are clearly limited. If the executive has no power to implement the decisions of the people or even call a general election to regain the confidence of Parliament, then there is no balance of power and no stable constitution.
After the Brexit saga is finally finished it will be time to have a good long look at our broken constitution. We need to set up a Constitutional Convention and set clear limits on the powers of all branches of government; this may require codification but at least it would bring clarity. Both the Supreme Court and the executive must know where they stand.