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:
How competent is Scotland’s parliament? That’s now a question for the Supremes to decide.https://t.co/sdrvrdOqgc pic.twitter.com/XxDjqnxE4I
— Joshua Rozenberg (@JoshuaRozenberg) April 14, 2021
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.
***
Thank you for reading this post on this daily law and policy blog.
If you value this free-to-read post, and the independent legal and policy commentary this blog and my Twitter feed provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.
****
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
*****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated.
Comments will not be published if irksome.
I would argue that, far from ‘enemies’, judges are the ultimate protectors of the people as a whole.
Bravo!
‘The Supremes’… it makes them sound like a dodgy 60’s tribute band.
Now I have a mental image stuck in my mind of the judges getting up and telling the government to ‘Stop, in the name of love…!’
As said, judges are the only protectors the people have left. This was one reason I liked being in the EU and having the ECHR able to worry Parliament and Prime Minister. Thinking of how it was only the threat of the European courts that forced Mrs May into the Hillsborough enquiry – far too late. Parliament may not have enjoyed the discipline the ECHR provided but we the people benefited and will soon suffer the lack.
A thin line of judges seems far too weak a protection. Once upon a time a strident media or some common sense of decency or possibly a fear of God held our politicians in check. Now, the media own the politicians, politicians have no decency and God has been sidelined. We need an outside influence to put a crimp in their misdeeds.
We have not left the European Convention on Human Rights. That was and is a policy of the Council of Europe, an organisation arising more directly from WW2 and older than the European Union (still older than the European Council, the heads-of-member-states guiding EU policy). I do not doubt that some MPs and ministers would like to leave the ECHR, but that is a much more difficult proposition of renouncing an international treaty – there is no exit clause.
While signing on to the ECHR is a condition of EU membership, and the EU is itself a signatory as an organisation (not just its member states), our ratification of the Convention long pre-dates the EU’s, or even the original European Communities themselves.
The Human Rights Act was not required by an EU Directive but was Parliament’s own choice – although by Parliamentary convention it could be repealed by Act of this or a future Parliament. The Act places enforcement of the Convention into UK courts but with appeal to the European Court of Human Rights; if the Act were repealed we would still be able to seek redress from that Court (again, not part of the EU system).
Certainly, leaving the EU has removed some obstacles to leaving the ECHR, but such treaties are hard to break. Since signing the ECHR is a condition of membership of the Council of Europe, we would be required to leave that organisation too.
I am delighted that you felt safe under the ECHR’s protection as a UK citizen. I am even more than delighted to inform you that you still can. The Council of Europe is a distinct organization from the European Union, and the UK is still a member. The court which no longer has jurisdiction in Great Britain (I am not quite sure about NI though) is CJEU.
I too am very sorry to have lost the ECHR.
Now if the UK had a codified constitution (that derided thing?) one would know the the Scottish parliament was co-equal with Westminster (or otherwise).
Of course, to get there one would need to go through a process were the politicians of the day did not call the shots. A people’s convention or something similar where all people and interest groups had an input and/or could participate. Perhaps too much to ask given the ingrained tradition and ritual from when William first waded ashore from Normandy.
As a rule of thumb, anybody who refers to an “enemy of the people” without accompanying it with exhaustive and careful reasoning of that claim is most likely themselves functioning in that moment as “an enemy of the people”.
“For the government. and its political and media supporters, the judiciary are the ‘enemies of the people’. The view is that it is no business of activist judges to interfere with what ‘the people’ want.”
I would rephrase that:
“For newspaper proprietors and their political supporters including the government, the judiciary are the ‘enemies of the people’. The view is that it is no business of activist judges to interfere with what newspaper proprietors want.”
One recalls Anthony Hilton’s report in the Evening Standard: “I once asked Rupert Murdoch why he was so opposed to the European Union. ‘That’s easy,’ he replied. ‘When I go into Downing Street they do what I say; when I go to Brussels they take no notice.’” Although Murdoch has since denied it, Hilton says he stands by the story.
On the question of the Scottish Parliament: Among the BTL comments on relevant articles in a certain newspaper, there are always some, who call for the dismantling of the devolution settlement and the abolition of the Scottish Parliament. Usually, in phrases such as “Tony Blair’s devolution experiment has failed”.
I find these comments remarkable – and they worry me: Given that devolution was introduced by a ‘normal’ act of Parliament, it could probably also be dismantled by a ‘normal’ act of Parliament. My suspicion is that only the expectation of considerable public opprobrium is keeping the Westminster government from exploring this, but I have got no faith that this will prevail: If the ‘North-Britishers’ get too uppity, I fully expect, that opinion to grow (and it to be fed by No 10!).
It can’t be a constitutional court when there’s no constitution to speak of. The few laws we have which deal with internal devolution arrangements are insufficient to justify the role and, as for all the unwritten rest, it’s apparently out of bounds since 1688. No, the current set-up is just fine.
The government would like to have its cake and eat it in relation to the Supreme Court, as with other things. It is foreseeable that an Executive and its lackeys which chafes against the ECHR & HRA and for which ECJ jurisdiction was an absolute red line in Brexit would want to take preventive action against the risk of UKSC seeking to substitute itself as a constraint on so-called parliamentary sovereignty, which clearly means unaccountable Executive sovereignty for much of the time. Like a pliant East European governing party the parliamentary Tory Party is happy to surrender powers of Parliament to hold the government to account. Would a codified constitution help?
‘What’s needed is not yet a constitution, but its preliminary, the recognition that governments must be subject to supreme law, ‘Lex Rex’, and that an agreed law of state must be written down’, as Neal Ascherson writes. https://www.lrb.co.uk/the-paper/v43/n07/neal-ascherson/scribbles-in-a-storm
The “imperial” usage is correct. Canadian and Australian laws could be disallowed by the imperial privy council. As well, a Governor-General, Governor or Lt. Governot could reserve legislation for “her majesties pleasure.” Long gone.
What is little known is the Canadian federal government has those powers over provincial legislation. The powers are dormant. The last example of disallowance was a 1943 Alberta law restricting land sales to Hutterites and Enemy Aliens. The last reservation was in 1961 when the lt. Gov. of Sask., on his own, decided to reserve a law on mining contracts. The federal government, which was blindsided by this, quickly granted royal assent.
The more England, whether in the courts or in Parliament. attempts to frustrate the will of a clear majority of the Scottish people the more certain independence will follow. Trying to assert that the Scottish Parliament cannot hold a referendum is political and legal nonsense. The only legal issue is whether England is obliged to accept the result. Failing military action, it really has no choice. The international community would not support England in the event of a unilateral declaration of independence by Scotland. As with Brexit, Scottish independence will require lengthy and complex negotiations on multiple subjects. Better the two countries enter into them as friends recognising that they have many common interests to nurture.
‘As with Brexit, Scottish independence will require lengthy and complex negotiations on multiple subjects.’
Why would England, a country of 60 million or so, enter into lengthy negotiations with a country of 5 million on the terms of England’s freedom from Scotland? What would we be discussing? What would Scotland have to offer us?
Money back. Jobs back. Border up. Job done.
Oil
Oil isn’t the big draw it once was. Very unlikely England would concede much for a commodity whose value may well plummet.
And if we were worried about oil, I’m sure we would listen to the ‘Remain’ vote from Shetland and award them crown colony status with a suitable deal. After all, it isn’t Scotland’s oil, it is Shetland’s oil.