british supreme court
At 10:30am, on 24th September 2019, Britain unofficially ceased to be a Constitutional Monarchy. I say unofficially, since no debate was held, no vote was conducted, no announcement was made. In fact, it appears to have gone almost entirely unnoticed across most of the media, Parliament and nation as a whole.

I refer to the extraordinary, and frankly revolutionary decision of the "Supreme" Court to declare unlawful the Prime Minister's decision to prorogue Parliament for what was — in effect — a period of ten days.

The first thing to say is that Mr Johnson's decision to ask the Queen to give her assent to his plan to prorogue Parliament was not unlawful under any convention within the British Constitution that existed prior to the judgement. One of the basic questions to ask is this: if it was unlawful, what law did it break? I have not seen a proper answer to that question, neither in the judgement itself, nor in the commentary I have read since then.

The reason for this is that there was no statute governing such a thing. And the reason there was no statute governing such a thing is that Parliament — by which is included the Crown — had passed no such law. And if Parliament had not passed such a law, then there cannot have been one, because — and here is the really important point — it is Parliament, not the "Supreme" Court that makes law — at least it was until 24th September 2019.

Charles Day, writing in the Spectator, put it like this:
"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."
The second thing to say is that the matter was not something which a United Kingdom court had any right to intervene in, under the existing constitutional arrangements of this country. In intervening, as it did, the Supreme Court effectively changed those constitutional arrangements, and yet it did so without acknowledging that it had done so, nor setting out what authority it had to do so.

In the judgement on the same case in the High Court on 11th September, the three judges made the following point:
"On Wednesday 28 August 2019 at a Privy Council held at the Court at Balmoral Her Majesty ordered that Parliament should be prorogued from a date between 9 and 12 September until 14 October 2019. The order was made on the advice of the Prime Minister. These proceedings were started later the same day. The main issue we have to decide is whether the decision of the Prime Minister to seek the prorogation of Parliament is justiciable (is capable of challenge) in Her Majesty's courts or whether it is an exclusively political matter [my italics]."
In other words, the High Court judges were not so much interested in the minutiae of the case — although of course they listened to the arguments from lawyers representing both Claimant (Gina Miller) and Defender (The Prime Minister) — as they were in whether they had any right to be adjudicating on the case at all. Here is their conclusion:
"We concluded that the decision of the Prime Minister was not justiciable. It is not a matter for the courts. In formal terms we granted permission to apply for judicial review but dismissed the claim."
Their ruling was simply that they had no right to rule on the case. It is noteworthy that a court that has been around since 1875 simply declared that it had no right to pass judgement on what is a political (that is subject to constitutional conventions), rather than justiciable (subject to legal rules) case, whereas the "Supreme" Court, which has just this week celebrated its 10th birthday, ruled by 11-0 that Mr Johnson had acted unlawfully.

Thirdly, it is crucial to understand how the High Court came to its decision, in order to see why the "Supreme" Court's decision was so utterly at odds with our constitutional settlement. The main part of the British Constitution to take note of in this regard is found in the 1689 Bill of Rights — a document which entered into law in 1689, a year after the "Glorious Revolution", and which itself became part of the blueprint for the US Bill of Rights a century later. In particular, Article 9:
"Freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament."
In other words, our constitutional settlement makes it clear that Parliament (which includes the Crown) is sovereign, and that no court in the land has any jurisdiction over its proceedings. Parliamentary affairs — including decisions to prorogue — are not, and cannot be, ruled upon by a court.

Which means that if any court did attempt to interfere and rule in the goings on in Parliament, as the Supreme Court has done, what it would mean is the constitutional settlement that has existed for nearly 350 years has been done away with — or perhaps "usurped" would be a more appropriate expression.

As Professor John Finnis FBA QC (Hon), Professor Emeritus of Law & Legal Philosophy in the University of Oxford and Biolchini Family Professor of Law at the University of Notre Dame, stated in his superb summary of the "Supreme" Court ruling:
"In thus impeaching what was self-evidently a proceeding in Parliament, the Court was acting against an Act of Parliament which for over 300 years has been regarded as decisive in defining the constitution of the United Kingdom and the law and conventions (including judicial conventions) governing the highest organs of the realm."
Fourthly, what this ruling has done is to effectively place the "Supreme" Court over and above Parliament and the Crown in the constitutional pecking order. All those claiming that the ruling is a triumph for Parliamentary sovereignty over against the executive are either sadly misguided, or (in some cases) wilfully disingenuous. Far from buttressing Parliamentary sovereignty, by ruling on a matter which, according to Article 9 of the Bill of Rights, and hundreds of years of convention, is something courts have no business in, what has effectively happened is that judgements of Parliament can be challenged in the law courts and potentially deemed unlawful. It hardly needs to be stated that this has potentially huge ramifications for future Government decisions, not to mention for the Monarchy. In future, will a Prime Minister need to go and ask Lady Hale's opinion and consent before going to see that other lady to whom Prime Ministers are normally obliged to seek assent from?

Fifthly, not only does this undermine Parliament, but it is also ultimately a threat to the democratic principle. According to Professor Finnis:
"The practical opportunities of each House to pass Bills and scrutinise the Government are redescribed as the "principle of Parliamentary accountability". Well and good. But those constitutionally vital opportunities, and that principle, have been protected for over 300 years, without significant mishap. The protection has been mainly by way of constitutional conventions which are policed politically, but partly it has been by way of ancillary legislation about many detailed aspects of government (including some aspects of prorogation), and ultimately it is by way of accountability to the electorate [my italics]."
In other words, Parliament has got along fine for nearly 350 years, able and willing to police itself, without the involvement of some so-called "Supreme" Court, not only because all Governments know they cannot actually govern without Parliament, but even more so because they know they will have to face the electorate, to whom they are accountable. The "Supreme" Court ruling potentially significantly weakens this arrangement. Whereas Governments are supposed to be challenged by opposition in Parliament, and the electorate without, it seems that power has now been handed over not just to the "Supreme" Court, but also to wealthy individuals, such as Gina Miller, to challenge decisions they don't like. And if this is the case, it must surely weaken the idea that it is ultimately the electorate that holds the Government to account for its political decisions.

Let me close by stating that I do not believe Mr Johnson's action was a wise one. On the contrary, it was fairly obvious what a stink it would cause. Yet folly is not necessarily unlawful, and in this case what he did was not unlawful according to the constitutional conventions that have governed Britain since the late 17th Century. The fact that it has been declared unlawful, by a court ruling in a case that is by definition, political and therefore not justiciable, signifies the end, or at least the beginning of the end, of that settlement.

That may or may not thrill you. But even if you were one who took the "Supreme" Court's decision with a certain amount of glee, just to see Mr Johnson get a bloody nose, be careful what you wish for. Unthought-through changes to long-standing political settlements are extremely unwise, especially in a constitution like the British, which is a rather delicate affair, and needs to be handled with care. The bull-in-the-china-shop approach to the case by this newish, Blair-instigated court (which incidentally bears no resemblance to the Supreme Court of the United States), cast away hundreds of years of Parliamentary sovereignty in a morning. I have a feeling it will come back to bite us, irrespective of our views on Brexit.