Turn the Ship Around

The UK’s Supreme Court is a nine-year experiment that has failed

If you open the hood of your car and mess about with the engine you can hardly be surprised if, later, it stops working at just the wrong moment. Likewise, constitutions by their very nature ought not to be fiddled with, and the current crisis in Westminster is ample proof.

Under the old system – before the Supreme Court and Fixed Term Parliaments Act – there would have been no crisis at all. The Prime Minister would see there is no working majority in favour of any way forward and would simply call a general election. Hypothetically, this would result in a government with a majority capable of moving business forward – all without much controversy.

Since FTPA was passed, however, the PM now needs a two-thirds majority in Parliament in order to bring about an election and the Opposition has up to this point blocked any chance at referring to the electorate in fear that the voters will back Boris over Corbyn. At the time it was passed, proponents argued not much would change with FTPA, as the point of the Opposition is to try and become the Government and what Opposition in its right mind would ever turn down the chance to fight a general election at a moment of crisis?

Enter now the Supreme Court in a timely intervention over the Prime Minister’s decision to end the longest parliamentary session on record by advising the Queen to prorogue Parliament over the long-planned conference recess. The Court has only been in operation since 2009, when it was created because legal experts and constitutional gurus told us it wasn’t correct for the highest court of appeal to technically be part of the legislature (even though this practice had been ratified by centuries of experience and had failed to present any difficulties).

The old system was robust and flexible; it is the innovation which has created stasis. Before it bent: now it breaks. Britain’s unwritten constitution is often summarised as “The Crown-in-Parliament is Supreme”. That means the Government exercises power with the authority of the Sovereign under the scrutiny of and with the confidence of Parliament. With the final court of appeal removed from the Parliament, where did that leave the Supreme Court? The justices have sought to answer with a judgement asserting that they are the ultimate authority in the land, supreme even over the exercise of the Royal Prerogative.

This runs contrary to the entire thrust of the UK’s constitutional development, which – up until this point – has been to strengthen scrutiny of the exercise of power and to increase the accountability of those who exercise that power. The Supreme Court’s judgement is a massive expansion of the justices’ own power without any counterbalancing accountability. When the Prime Minister exercises power he is held accountable by his need to maintain the confidence of his party colleagues and of the House of Commons. If he fails to do so he can be replaced as PM or ultimately his party can be chucked out by voters in a general election. How are Supreme Court justices to be held accountable though? What actions can voters take when justices overstep the bounds?

If justices seek to exercise political power than they must face concomitant levels of scrutiny and accountability that don’t – yet – exist. They cannot expect to receive the traditional obeisance and deference of politicians and the general public that the pre-Supreme Court judiciary received if they fail to observe the same self-restraint and respect for the Parliament’s role as legislature that the pre-Supreme Court judiciary observed.

The fundamental question is what the appropriate reaction of an ordered society is when judges overstep their bounds. If a Conservative majority government – presuming that is even the result of the next election – fails to respond appropriately to the Supreme Court’s ruling it is difficult to see how the UK can avoid going down the American route of a highly politicised judiciary. Ultimately, this would mean greater parliamentary oversight in the appointment of justices to the Supreme Court. Would they be prepared for long hearings in parliamentary committee rooms where every aspect of their past (including their student antics at university) were dredged before the public? Would voters be prepared to accept that an unaccountable Supreme Court can overturn any action of a democratically accountable executive or law passed by a democratically elected parliament with which the justices disagreed?

A Conservative majority government could easily, by simple Act of Parliament, remove the Royal Prerogative from the purview of the Supreme Court and further clarify (meaning restrict) the Court’s room for manoeuvre. But perhaps this isn’t a problem that can be fixed by tweaking. Trying to make sure justices understand they don’t have the authority to make naked power grabs seems impossible when you have an establishment that, in legal circles and otherwise, believes its will overrides the democratic mandate of the people in a constitutional monarchy. Restrictive legislation can help clarify, but it won’t strike at the heart of the institutional cockiness the Supreme Court exudes. (Remember that it ominously chose the Greek letter omega – symbolising finality – as its official emblem.)

Far better, then, to concede our own humility and accept that the Supreme Court has been a nine-year experiment which has failed. This would mean repealing those provisions of the Constitutional Reform Act 2005 which created Supreme Court in 2009 and going back to having Lords of Appeal in Ordinary sitting as the Appellate Committee of the House of Lords. There would be no problem with Law Lords continuing to sit in Middlesex Guildhall across Parliament Square as the Supreme Court does today.

Opponents must accept that the unaccountability the Supreme Court seeks to exercise belongs to another era: we live in the age of transparency, accountability, and taking back control.

History is littered with coups and grabs for power. Some succeed, others are attempted and fail. This “constitutional coup” can be foiled, but it requires a general election, a Conservative majority, and a government intent upon deliberate action.

Instagram: @andcusack

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