14th April 2021
For the government. and its political and media supporters, the judiciary are the ‘enemies of the people’.
The view is that that it is no business of activist judges to interfere with what ‘the people’ want.
It is a view that led the London government to oppose the supreme court determining the two Miller cases.
It is also a view that informs the current attempts by the government to limit judicial review and the scope of the human rights act – to the claps and cheers of many who (frankly) should know better.
But it is a shallow view, adopted out of convenience and partisanship.
For, when the political boot is on a different constitutional foot, the government suddenly values an independent judiciary being able to assess the constitutional propriety of a measure:
See Joshua Rozenburg’s detailed piece here.
Also note the response of the London government’s former chief legal official:
So it seems the UK government is (after all) happy for the Supreme Court to police the boundaries of the constitution. Which is indeed its job. https://t.co/LgHsjphNdN— Jonathan Jones (@SirJJQC) April 14, 2021
From a political perspective, this referral prompts mixed feelings.
My political view is that a Scottish parliament can and should be co-equal with the Westminster parliament – as the legislatures in Canada and Australia are, even if nominally under the same head of state.
As such, it is frustrating to see the emphatically supported view of the Scottish parliament potentially stymied in this way.
But a political view is not always the same as a constitutionalist perspective.
And under the current constitutional arrangements of the United Kingdom, this is a question that can be referred to the supreme court – and as such there is nothing unconstitutional about the London government doing so.
(Whether those should be the constitutional arrangements is a different question.)
It is sheer hypocrisy – and there is not other word – for the London government, and its political and media supporters, to pick-and-choose when the supreme court gets to determine constitutional questions.
Either the supreme court is a constitutional court or it is not a constitutional court.
And it should not be regarded as only a constitutional court when the London government wants to face down Edinburgh, Cardiff, or Belfast.
A constitutional court is not and should not be regarded as an imperial court.
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