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denial of the reality of events, it had broken primary law as set out in the Bill of Rights, a law that had not been repealed or amended.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.