Three pillars: parliament, judiciary, government

When the UK Supreme Court declared Boris Johnson’s suspension of parliament unlawful, most politicians agreed it was a big blow to the UK prime minister.

But for many lawyers, the unanimous judgment by the court’s 11 justices on Tuesday is of much more lasting constitutional significance because it reinforces the power of parliament in the face of an often powerful governing executive.

“This will be seen down the years as a judgment of huge importance with major implications for our system of government,” said Catherine Barnard, professor of European Union and employment law at the University of Cambridge.

“The Supreme Court has looked over the edge and pondered what our constitution might look like if we have players who don’t play by the rules and, for example try to suspend parliament for a long period. They’ve set down an important ruling to stop that happening in future.”

Unlike many other democratic countries, Britain has an unwritten constitution: there is no single legal document which defines the laws on how the state works. Power has for centuries been carefully balanced between three institutions: parliament, the executive (or government), and the courts.

However, Professor Barnard said that in Britain’s crisis over Brexit, that triangular relationship has become unbalanced.

“Parliament hasn’t functioned effectively because the government hasn’t got a majority and the opposition is so divided,” she said. “The executive, meanwhile, has a very aggressive agenda because of its ambitions for Brexit.”

As a result, in the view of Prof Barnard and other lawyers, the Supreme Court has been forced to intervene to reassert the traditional balance of power within the UK that has always been in parliament’s favour.

“The Supreme Court has declared that parliament is the senior partner in the relationship and that the governing executive is the junior partner,” says Professor Vernon Bogdanor, a constitutional historian. “What the Supreme Court has done is to reaffirm the established principle of the sovereignty of parliament.”

Some constitutional experts are highly critical of the Supreme Court’s decision. They believe that, far from making a careful judicial intervention, the Supreme Court is undertaking a naked power grab.

“I do think the court has overstepped the mark,” said Richard Ekins, associate professor of law at Oxford university and head of the Judicial Power Project at the Policy Exchange. “It is a startling judgment and I think it is badly mistaken.”

He added: “It’s a very, very bold step by the court into the territory governed by the political constitution and shows a clear loss of faith in the political process. The court has chosen to assert jurisdiction in an area I and many other lawyers didn’t think that it had.”

David Mundy, partner and parliamentary agent at BDB Pitmans, also said he found the Supreme Court’s decision “challenging and potentially troublesome.”

He noted that the English High Court had last week ruled that there were insuperable difficulties in the courts being able to look at this area. “Yet the Supreme Court is saying there is no problem at all with the question of justiciability. I am very surprised by the decision.”

The UK Supreme Court was established in 2009 and some legal experts believe that it is gradually trying to turn itself into a body similar to its US counterpart.

The US Supreme Court can strike down any primary legislation, its justices are political appointees and its rulings — such as guaranteeing abortion rights — can bring big social change to US society.

In the UK, the Supreme Court is certainly acquiring a much higher public profile. It has opened itself up to the public by streaming its cases online and last week it saw 4.4m requests to access the hearing. Some critics would also argue that the Supreme Court has in the past considered — but ultimately declined to rule on — political questions such as the criminalisation of assisted suicide and the welfare benefits cap.

“We do have a very active public law jurisprudence from the Supreme Court which has tended to fill in some gaps that used to exist in public law and judicial review,” said Jim Cormack QC, solicitor advocate at law firm Pinsent Masons.

However, Professor Robert Hazell of the constitution unit at University College London rejects the view that the Supreme Court is championing more intervention in political matters.

“Over the decades, there certainly has been growing intrusion by the courts into politics because of the Human Rights Act and Britain’s EU membership,” he says. “But I don’t see this particular case as one further twist in that spiral. Instead it simply reminds us that the basis of our constitution is parliamentary sovereignty and that any prime minister is ultimately accountable to parliament. It is a shame that it has taken a case like this to remind us of that principle.”

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