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Sir Julian Brazier is a former Defence Minister, and was MP for Canterbury from 1987-2017. He is Chairman of a security company.

When the Supreme Court delivered its judgments on the Miller and Cherry cases, the Prime Minister commented:

 “… if judges are to pronounce on political questions in this way, then there is at least an argument that there should be some form of accountability. The lessons of America are relevant.”

Let’s examine this.

Britain has, famously, an unwritten constitution. Our constitution does have some important statutory elements, including the Bill of Rights, the Representation of the Peoples Act and the Parliaments Act but, for most purposes, it is driven by convention, policed by Parliament itself and, crucially, by the wider court of public opinion.

Our flexible constitution has served us well in peace and war, as shown by the astonishing lack of constitutional crises, since the 17th Century. Our nearest neighbour, France, by contrast, is on its Fifth Republic since 1789 with interludes of monarchic rule. No British political leader has defied the courts since the Bill of Rights in 1688, unlike the USA where several presidents have rejected court rulings, including most famously Abraham Lincoln, who did so repeatedly, starting with the notorious Dred Scott verdict.

After Britain’s civil wars in the 17th Century, pitting the Crown against much of Parliament and the parliamentary coup known as the ‘Glorious Revolution’, the Bill of Rights (1688) was our founding constitutional compromise. It established that sovereignty lay with ‘The Crown in Parliament’. It also, crucially, prescribed

“That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”

This means inter alia that the courts cannot challenge the legitimacy of legislation on the basis of parliamentary process. Such process is subject only to the standing orders of the two houses of Parliament and the rulings of the Speaker and Lord Speaker.

Sovereignty of the Crown in Parliament, in practice, has meant that the government (signified by ‘The Crown’) has governed, while requiring explicit parliamentary sanction to raise taxes and make laws – and having to answer to Parliament for its actions. Crucially, Parliament has the power to dismiss a government through a no confidence vote.

A number of important factors have distorted this; joining the EU and the European Convention of Human rights made us subject to directives from abroad and allows courts to strike down legislation where it conflicts with the former and register formal protests under the latter. The other critical change is David Cameron’s Fixed Term Parliament Act which prevents a Prime Minister from calling an election, without Parliamentary action.

Nevertheless, the basic structure of rule by the Crown in Parliament remained in place. At its heart was the arrangement that, to allow a government to govern, legislation could only be initiated with the agreement of the government. All bills were government bills, except those like Private Members Bills whose arrangements depend on government.

This arrangement has recently been stood on its head by John Bercow, by allowing an ad hoc majority in the Commons to table and pass legislation – directing the government in its duties.

Constitutional authorities in this country are few – precisely because we have so few constitutional issues – and are mostly not lawyers. Probably the best known of them is Vernon Bogdanor. He comments:

‘The truth is that 650 MPs cannot make policy. Only the government can do that. The role of parliament is not to govern but to scrutinise those who do. That is especially the case with the treaty-making power… And parliament is in no position to renegotiate a treaty… MPs have rejected the government’s flagship policy without providing any alternative. It is enabled to pursue this course because of the wretched Fixed-term Parliaments Act.’

In other words, this group, answerable to nobody – until election time – are blocking an election to enable their rule to continue

In response, the government decided to use the ‘Crown prerogative’ to prorogue Parliament leading to the court case which sparked this article. Some Brexit supporters like myself felt that this was a political mistake, but courts are not supposed to rule on politics. What was at stake in that case was the simple question of whether or not the Crown prerogative to prorogue Parliament was justiciable or not.

The view of most senior lawyers, before the Supreme Court considered the case, was that it was not. Indeed a very senior panel of English judges, including the Lord Chief Justice, ruled that is was not, but their counterparts in Scotland disagreed and the Supreme Court decided that this was a matter it could rule on – and did so against the government.

Students will study this judgment for generations. Two things stand out: first the dearth of constitutional precedents. Apart from its own ruling on the putative Brexit Treaty just three years ago, the court is forced to rummage around for cases on local authority budgets, criminal injuries compensation and employment tribunal fees. It it can find only one unmistakably constitutional case, the Case of Proclamations (1611), which ruled that altering the law of the land by the use of the Crown’s prerogative powers was unlawful. To this one case, last month’s judgment returns again and again.

That should send alarm bells ringing. British law looks back (occasionally) to the reign of Richard II but, on constitutional matters, 1688 has always, hitherto, been regarded as a watershed. We simply weren’t governed in a near-universally agreed way before that, so leaning heavily on a case from earlier is extraordinary. That is especially so here as the judgment also dismisses the provision of the Bill of Rights itself quoted above (on the unprecedented grounds that prorogation happens in Parliament without its consent and so is not a parliamentary proceeding).

Equally, the judgment talks about Parliamentary sovereignty but assumes a distorted doctrine of what that actually means. The judgment never formally defines Parliament but, in paragraph 55, implies that it consists only of the House of Commons and the House of Lords. One does not have to read Dicey to know that Parliament has a crucial third element, the Crown.

The Government was hog-tied. It could not defend its actions by setting out how today’s temporary majority in Parliament had trashed the conventional interaction between government and Parliament. This was because doing so so would have invited the Court to trespass still further behind the screen on parliamentary proceedings erected by the Bill Of Rights. We have indeed witnessed a judicial coup.

So what to do? The worst option would be to move to a written constitution – such an arrangement would increase the powers of the courts because, once codified, all constitutional matters would be justiciable.

Restoring the power to the Lord Chancellor (put back in the Lords) to appoint – but not sack – judges would be helpful. Most governments wish to discourage activism, but it is difficult to see how hearings would help, as MPs would take different views. Secondly, the FTPA should be repealed, allowing government to proceed with its business – or resign and call an election.

The other key measure to heal this breach would be to disband this new court with its beguiling name – and restore Parliament as the highest court of the land by re-introducing the judicial committee of the Lords (the Law Lords) to replace the Supreme Court. While the current Supreme Court judges are members of the Lords too, bringing their institution back into Parliament would surely improve mutual understanding.

71 comments for: Julian Brazier: Let’s resist a written constitution – and restore the Law Lords

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