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| Britain Now Has a Politicized Supreme Court, Too | Britain Now Has a Politicized Supreme Court, Too |
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| British citizens were jolted Tuesday morning by a landmark decision of their Supreme Court. The court’s 11 justices ruled unanimously that the government, led by Prime Minister Boris Johnson, had illegally suspended — or “prorogued” — Parliament earlier this month at the height of the debate over Brexit. | British citizens were jolted Tuesday morning by a landmark decision of their Supreme Court. The court’s 11 justices ruled unanimously that the government, led by Prime Minister Boris Johnson, had illegally suspended — or “prorogued” — Parliament earlier this month at the height of the debate over Brexit. |
| British voters’ decision in a 2016 referendum to exit the European Union will finally become law on Oct. 31 if Parliament does not find a way to stop it. But Parliament very much wants to stop it. So do many of the country’s journalists, lawyers, professors and entertainers. In the Supreme Court case, which reviewed two decisions from lower courts, the plaintiffs argued that prorogation was a bid to tie Parliament’s hands. | British voters’ decision in a 2016 referendum to exit the European Union will finally become law on Oct. 31 if Parliament does not find a way to stop it. But Parliament very much wants to stop it. So do many of the country’s journalists, lawyers, professors and entertainers. In the Supreme Court case, which reviewed two decisions from lower courts, the plaintiffs argued that prorogation was a bid to tie Parliament’s hands. |
| Prorogation is a royal prerogative. As a constitutional matter it was Queen Elizabeth’s authority that was dented on Tuesday. But no one, least of all the court, was eager to put things in quite that light. Instead the court accused Mr. Johnson, a Brexit supporter, of having given the Queen “unlawful advice,” though it did not quote any of it. The plaintiffs exulted in Mr. Johnson’s defeat and called it a victory for democracy. | Prorogation is a royal prerogative. As a constitutional matter it was Queen Elizabeth’s authority that was dented on Tuesday. But no one, least of all the court, was eager to put things in quite that light. Instead the court accused Mr. Johnson, a Brexit supporter, of having given the Queen “unlawful advice,” though it did not quote any of it. The plaintiffs exulted in Mr. Johnson’s defeat and called it a victory for democracy. |
| It was murkier than that. As with Supreme Court cases in the United States, the news stories all carried explanatory sidebars: What is the relevant law? What is the evidence? But one BBC story had a more fundamental thing to explain: “What is the Supreme Court?” | It was murkier than that. As with Supreme Court cases in the United States, the news stories all carried explanatory sidebars: What is the relevant law? What is the evidence? But one BBC story had a more fundamental thing to explain: “What is the Supreme Court?” |
| Answer that question and you unravel a lot of the mysteries of Brexit. The British Supreme Court is a brand-new institution, still not even a decade old. It arose from Britain’s entanglement with the Continent and was drawn up, under Prime Minister Tony Blair, partly to harmonize British law with the European Convention on Human Rights. Parliament, by contrast, is ancient enough to need no BBC sidebar, and the royal prerogative goes back centuries. Prime Minister John Major, a Tory, used prorogation as a tactic in the 1990s, as did his Labour predecessors in the 1940s. | Answer that question and you unravel a lot of the mysteries of Brexit. The British Supreme Court is a brand-new institution, still not even a decade old. It arose from Britain’s entanglement with the Continent and was drawn up, under Prime Minister Tony Blair, partly to harmonize British law with the European Convention on Human Rights. Parliament, by contrast, is ancient enough to need no BBC sidebar, and the royal prerogative goes back centuries. Prime Minister John Major, a Tory, used prorogation as a tactic in the 1990s, as did his Labour predecessors in the 1940s. |
| Cases such as the one decided on Tuesday often seem less about adjudicating between quarreling parties than effecting a transfer from one constitutional framework to another. Over the centuries, Parliament has taken various monarchical prerogatives and rendered them essentially democratic, while allowing Britain’s institutions to retain, superficially, their royal pomp. The new Supreme Court is taking those democratic prerogatives and rendering them subject to judicial correction, while retaining the language of democracy. The court is an arm of the class that brought Britain into the European Union, a homegrown element of the now-repudiated European Union itself. | Cases such as the one decided on Tuesday often seem less about adjudicating between quarreling parties than effecting a transfer from one constitutional framework to another. Over the centuries, Parliament has taken various monarchical prerogatives and rendered them essentially democratic, while allowing Britain’s institutions to retain, superficially, their royal pomp. The new Supreme Court is taking those democratic prerogatives and rendering them subject to judicial correction, while retaining the language of democracy. The court is an arm of the class that brought Britain into the European Union, a homegrown element of the now-repudiated European Union itself. |
| Such institutions are changing the whole of British politics. The country’s “unwritten constitution” consists of the laws Parliament passes and certain customs associated with them. Without a written constitution to circumscribe its powers, a court can seize on anything and interpret it in any direction. | Such institutions are changing the whole of British politics. The country’s “unwritten constitution” consists of the laws Parliament passes and certain customs associated with them. Without a written constitution to circumscribe its powers, a court can seize on anything and interpret it in any direction. |
| The opening section of the Supreme Court’s decision on Tuesday insists, dubiously, that the case “arises in circumstances which have never arisen before and are unlikely ever to arise again. It is a ‘one-off.’” Such language is reminiscent of Bush v. Gore, the United States Supreme Court case that effectively declared the winner of the 2000 presidential election. As we read Tuesday’s ruling, it is worth recalling that nothing undermined public confidence in that American decision as much as the court’s insistence at one point that it not be read as a precedent. | The opening section of the Supreme Court’s decision on Tuesday insists, dubiously, that the case “arises in circumstances which have never arisen before and are unlikely ever to arise again. It is a ‘one-off.’” Such language is reminiscent of Bush v. Gore, the United States Supreme Court case that effectively declared the winner of the 2000 presidential election. As we read Tuesday’s ruling, it is worth recalling that nothing undermined public confidence in that American decision as much as the court’s insistence at one point that it not be read as a precedent. |
| The British court’s decision quotes a 1611 case to the effect that “the King hath no prerogative but that which the law of the land allows him.” But that assumes the court will determine what the law of the land is, not what it should be. To the frustration of the government’s defenders, the court not only judged the case at hand but also speculated about what would happen if the power of prorogation were unlimited. | The British court’s decision quotes a 1611 case to the effect that “the King hath no prerogative but that which the law of the land allows him.” But that assumes the court will determine what the law of the land is, not what it should be. To the frustration of the government’s defenders, the court not only judged the case at hand but also speculated about what would happen if the power of prorogation were unlimited. |
| When institutions were more democratic in spirit, judges were not authorized to meddle with Parliament. They were not free to alter the constitution on the basis of conjecture. | When institutions were more democratic in spirit, judges were not authorized to meddle with Parliament. They were not free to alter the constitution on the basis of conjecture. |
| It may well be, as the justices imply, that Tories were counting on this deference in hopes of running out the clock on the Brexit debate. But Tories did have reasons to prorogue Parliament. This is already the longest serving Parliament since England’s 17th-century civil war, and leaving it unprorogued could keep it in session for months longer. | |
| It is true that prorogation would have taken Parliament out of session for five of the last eight pre-Brexit weeks, but three of those weeks were those of the annual party conferences, in which Parliament shuts down anyway. The prorogation seemed to matter little. | It is true that prorogation would have taken Parliament out of session for five of the last eight pre-Brexit weeks, but three of those weeks were those of the annual party conferences, in which Parliament shuts down anyway. The prorogation seemed to matter little. |
| As an immediate political matter, so did the court’s decision. While Mr. Johnson finds himself in a tricky spot, it is not much trickier than the one he was in on Monday. The procedural machinations of John Bercow, the speaker of the House of Commons and a Brexit opponent, and Mr. Johnson’s own (strategically necessary) expulsion of two dozen anti-Brexit party members, have deprived him of his ability to control debate. Parliament has required him to request a Brexit extension if he cannot agree to a deal with the European Union by the middle of next month. | As an immediate political matter, so did the court’s decision. While Mr. Johnson finds himself in a tricky spot, it is not much trickier than the one he was in on Monday. The procedural machinations of John Bercow, the speaker of the House of Commons and a Brexit opponent, and Mr. Johnson’s own (strategically necessary) expulsion of two dozen anti-Brexit party members, have deprived him of his ability to control debate. Parliament has required him to request a Brexit extension if he cannot agree to a deal with the European Union by the middle of next month. |
| If Mr. Johnson can somehow survive, though, the situation favors him. As he has moved from one “loss” to another “humiliation,” his position has solidified in the polls. His newly purged pro-Brexit Tory party would probably win a general election. | If Mr. Johnson can somehow survive, though, the situation favors him. As he has moved from one “loss” to another “humiliation,” his position has solidified in the polls. His newly purged pro-Brexit Tory party would probably win a general election. |
| Britain now has a politicized court on the American model. Pundits of all persuasions speculate about future confirmation hearings, at which Supreme Court nominees would be quizzed on Brexit just as their American counterparts are quizzed on Roe v. Wade. The British Supreme Court’s landmark decision seems to have shaken Britain’s traditional constitution more than it has Britain’s Brexit prospects — but increasingly those are two ways of saying the same thing. | Britain now has a politicized court on the American model. Pundits of all persuasions speculate about future confirmation hearings, at which Supreme Court nominees would be quizzed on Brexit just as their American counterparts are quizzed on Roe v. Wade. The British Supreme Court’s landmark decision seems to have shaken Britain’s traditional constitution more than it has Britain’s Brexit prospects — but increasingly those are two ways of saying the same thing. |
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