This article is written from a layman’s perspective. After the shock and indignation expressed in ‘How dare they’ we perhaps should consider more about why.
Statutory interpretation is the process courts apply to legislation. Our constitution is uncodified and the judiciary interprets statutes and develops common law.
The Magna Carta, The Petition of Right and The Bill of Rights are primary statutes that have contributed to our laws. But argument continues and there is conflict of opinion. Is this conflict sometimes an obfuscation? We assume that the British way is the best in the world. But is it always right or is there no right or wrong? Have we lost our way in legalese and debate, precedential laws and influences based on possibly wrong decisions and interpretations?
There are those who believe the ills of the world are due to a corruption of the basic understandings and definitions. Democracy is a prime example. On the other hand jury was an explicit right as stated in Article 39 of the Magna Carta but there are reasonable arguments against its use in certain cases.
Is it crude to say we may have been screwed by clever argument? Again the play on words. A point put for effect, but is it justice?
The Supreme Court ruling clearly said that the prorogation judgement was nothing to do with Brexit, yet this was made at a time when the country was in the business of leaving the EU. To add, it was in respect of a Parliamentary process instigated by the Government directly associated with that business. Not only had that court been in apparent denial of the reality of events, it had broken primary law as set out in the Bill of Rights, a law that had not been repealed or amended.
When the creation of the Supreme Court was first considered in 2003 the support was that the existing system of law lords confused people and that there needed to be a clear separation of powers between legislative, executive and judiciary of governance. The challenge was that the existing system worked and the impartiality of the law lords had never come into question. It was also argued that there was a risk of judges arrogating more power to themselves; that possibility was considered unlikely.
In hindsight it would have been correct to have said that it was highly likely that they would overstep their powers, and their impartiality questioned, as that appears to be the case.
The law lords was a system that worked and was perceived impartial. Perception is important. A system that worked has been replaced by a system that does not work.
The decision was made by an ideologically driven political party. When all is done the so called Supreme Court will have to be reviewed.
During consecutive governments of Labour and Conservatives the organisation and funding of the judiciary has been meddled with. There doesn’t seem to be a better way of describing it. As with the NHS, education and just about any other area of society our politicians have made a bad job of things. It can be rightfully argued that May’s term as Home Secretary was a disaster for the judiciary and subsequently the level of crime that we see now. Her management of our police was no better. We could debate who was worse, Blair or May, but either way we lost.
Was the Supreme Court’s decision impartial and if not was that through mischief or naivety? Let us give them the benefit of the doubt and call it ideologically-biased. That is alright, there is no shame. To be affected by ideology is a natural flaw in the human condition. But there you have it, why else would it be so important to have an independent judiciary and one which cannot question the machinations of Parliament itself, as laid out in clear English by Article 9 of the Bill of Rights. Is there something missed, it seems so simple?
Henry VIII may have been maligned when it is said his main dispute with Rome was about marriage. No, it was about of papal power over English sovereign power. The similarities with today’s events are conspicuous. It is also noted that Cardinal Wolsey, the devious Arch-remainer, lost his head over his behaviour in slowing proceedings.
What has to be drawn to attention is the ideological influences, as prevalent today as they were then. A belief system will override reason and self-preservation. This phenomenon does not exclude the highly intelligent, nor is it polar; there are many degrees of fanaticism just as there are many forms of radicalisation. A clever person can concoct a convincing reason why black is white or right is wrong.
There are then three possible reasons for the Supreme Court ruling: mischief, naivety and ideology. It may be kind to assume the last.
As the Brexit process is drawn out, the corruptness, elitism and incompetence of the establishment becomes exposed. Change has never been as inevitable or necessary as in our time. We can double down on democracy or become more dictatorial in our governance. My hope would be a drawing down of power through localism with subsidiarity, improving democracy.
We are on the threshold of a five hundred year cycle, marked by the Roman invasion, the Saxon invasion, the Norman invasion and the Reformation, with all ensuing problems and turmoil. Within the next few decades it is highly likely in my opinion that we will have a second Reformation. It is bitter consolation that we may be leading the way again.
To be daring is another human trait. Whether the dare is brave or stupid, the consequences may not always be fully considered. ‘How they dare’ may say more about the righteousness of their reason or cause.
Thank you Kim. I don’t go all the way with you about Regionalism or local democracy (though I certainly want to shake my local councils by the scruffs of their necks). However I do agree about ‘our’ so called ‘supreme court’. It is not ours. It is another tentacle of the EU. Spider woman is an apt name for Hale and there was a breakdown somewhere on line showing that all the members have and still do, owe allegience to the EU.
We do know that it was GRAFTED ON to our justice system by EU lovers. As you say the Law Lords, the previous system worked well. Never any problem of bias regarding our Constitution – Our form of separation of powers.
Repeal it. Go back to how it was.
Along with the FTPA. And a hell of a lot more.
The whole sordid business of the politicised judiciary and Parliament seeking to overthrow the outcome of the referendum by hook or crook may be down the fact that they don’t fear the displeasure of the people or consider the people able to challenge the mighty state apparatus. The establishment have aggregated much power and influence for themselves with a multitude of lever options to pull for most eventualities in order to control the masses.
If ordinary decent people would wake up and become as politically active as the liberal left have been for the last 50 years then Parliament and the judiciary would be more cautious in their outlook and actions.
This may sound righteous but I believe one knows when the cause is right. The truth will out. The liberal left are running on lies and of course I would say that. But in my heart that is the case. It has always been a battle for minds. How will the Germany economy fair after Brexit, assuming we get Brexit? How will the Irish economy fair? Hardship and creates pain and it will be pain that will wake people up.
The judiciary are nothing without Parliament and Parliament are nothing without the people. Who then will win this struggle? Watch this space.
A great analysis of the situation we find ourselves in Kim, in your usual well-thought-out style!
Thank you Rob. The consequences of the Supreme Court behaviour are yet to be appreciated. We bite our lips as nobody wants disruption but the storm is coming when those actions will be judged. We can hunker down or cry ‘Foul’. Probably both.
Kim, you’re right to state “My hope would be a drawing down of power through localism with subsidiarity, improving democracy.” I’m for the balkanisation of the whole planet, not least because the smaller the state, the less clout the MSM have.
My advocacy of Scottish independence is based not on nationalism but on my conviction that small states are the way forward. My best example: Switzerland (pop. 8.5m), with regular referenda on local and federal issues.
There is a line of thought that because the Scottish, Welsh and Northern Irish Parliaments do not work well for the people of those countries they should be abolished. Nothing could be more wrong. Those battles against corruption, incompetence and elitism must be won. Those battles will not be won by running away. Devolution will not go away. People want ownership down to whatever level works for them. That level will be a lot lower than Westminster. Whether that is Regional or Local the battles against anti-democratic incompetent behaviour must be won and cannot be passed on to higher realms. With freedom and ownership come responsibility. Thank you and I agree.