Civil War?

Before we begin to grapple with the gravity of the United Kingdom’s Supreme Court decision on prorogation, can we acknowledge the extreme weirdness of our times? A Parliament suspended by a Queen on the dodgy advice of the Prime Minister!

In the distorting mists of time, the mother of parliaments faced a similar situation. That ended in a civil war and Charles I’s head bouncing around the streets of London. 

The United Kingdom is now in uncharted waters. As the fall out from Brexit rumbles through the institutions and customs of governance, democracy is starting to look a shaky prospect. Part of the problem is the British constitution remains a hodgepodge of laws and conventions. 

For example, the Prorogation Act of 1897 gifted the Prime Minister the right to shut down Parliament subject to the Queen’s agreement. However, the sovereignty of Parliament has emerged in a series of acts that sought to restrain the Crown.

This process started with the Magna Carta in 1215. Ever since then, the constitution has organically grown, although certain aspects are inviolable or fixed. You can’t mess with these. The five sacred constitutional principles are:-

• Sovereignty of Parliament
• Rule of Law
• Unitary Government
• Parliamentary Government
• Constitutional Monarchy

The judgement this week of the Supreme Court was political because it stepped into the domain of these principles. There is no other way to view it, given the profound implications. Of course, the esteemed judges could opt not to get involved. Instead, they’ve jumped into the political pool to send waves crashing in all directions. 

Meanwhile, the government is not beyond criticism for failing to offer any meaningful defence. Thus, it left the judges with no alternative — beyond not getting involved — but to find that the Prime Minister misled the Queen and the country.

​Then again, I didn’t need eleven judges to tell me that. Presumably, had Boris offered a justifiable reason for prorogation it would be lawful? 

Nonetheless, in my view, the judges overstepped the mark. In this instance, the Court saw through the government’s transparent false position. They appear to have taken offence and decided to act. This approach makes me think they desired to slap down shoddy behaviour by the Prime Minister. All things considered, that’s not their role. Thus, they crossed a line. 

Courts are there to interpret the law. In simple terms, there are no grounds for deciding the rights and wrongs of a political decision outside the remit of the law. Is that principle now waved?

But, the full impact of this decision will take some time to digest. There are many other questions. Does this change governance in the UK? Will other political decisions face challenges in the Courts? In the future, are the Courts to decide all political decisions?

​While the Courts keep the option not to consider such matters, the bar is now lower. I’d envisage a spate of such interventions. 

Plus, and this is critical, getting stuff through the Courts is a wealthy person’s game. The ordinary citizen doesn’t have the financial resources to commit to such action. Already sentiment exists that the ‘establishment’ seeks to defeat the democratic will of the people by thwarting Brexit.

The Supreme Court decision, no matter the validity of the resolution, plays straight into that narrative. No wonder the rhetoric has turned nasty. 

Without a doubt, Brexit is placing considerable strain on the British constitution. That constitution enjoys admiration across the world as something to follow. 

Except these events taint that image. The evidence suggests powerful forces can defeat the integrity of the system. Which bring the next question, is it broken?

So, how should the system function and who governs Britain? The answer is neither straightforward nor wholeheartedly agreed on. Let me attempt to explain. The Queen is the head of state; it’s her country and laws. Except it doesn’t work that way.

Moreover, the Brits don’t even choose the Prime Minister. The people elect 650 members of Parliament, based on geographical constituencies. Each area has approximately 70,000 voters. 

Every five-years, a general election allows folks over the age of 18 to pick their MP. Most MPs belong to political parties, although nothing in the rule book says such parties are needed. In theory, all MPs could be independent. 

After the election, the Queen invites one MP to be her Prime Minister. This practice started with King George I (August 1714 – June 1727), who needed an advisor to help him run the country because he only spoke German. Traditionally, the Queen invites the head of the party with the most MPs. 

There is nothing to stop her asking any MP to be the Prime Minister. Nothing except the uproar and probable riots in the streets.

The Prime Minister then forms a cabinet to run the country. Every decision they take and their policies are subject to scrutiny by the opposition. Except, nowhere in the constitution is an opposition mentioned. 

Now for the rub. In most countries, the constitution takes the form of a single document. Not in Britain. There are four primary sources of the unwritten constitution; statute law passed by Parliament, common law arising from judgements, parliamentary conventions and works of authority. You can see the problem. 

With much of the constitution not written down, only with everyone agreeing to follow the ‘unwritten rules’ can it function. Having an unwritten constitution supposedly offers flexibility as the country changes. It’s also argued that it provides opportunities for skulduggery. 

One of the conventions is the established principle that Parliament is sovereign. In other words, it has the final say. That principle suffered some bruising when the Queen closed Parliament at the behest of the Prime Minister. Later, the Supreme Court overturned that shutdown. 

While everyone is asserting that the Prime Minister misled the Queen, the incident echoes through history. The old feudal conflict between the Crown and Parliament can have dire consequences.

Prime Minister Boris disagrees with the Court’s decision, although he’s duty-bound to follow it. He came out all guns blazing with bad-tempered exchanges in Parliament. He’s challenged the reluctant opposition to put the matter to the nation. They remain uncommitted to an immediate general election fearing the result. 

Having reasserted the sovereignty of Parliament, the Court has weakened Boris Johnson’s position considerably. Likewise, they’ve blocked attempts to proceed with a no-deal Brexit. Impasse.

This crisis continues to unfold with the full ramifications of the Supreme Court’s decision unlikely to be clear for decades. What is certain is that Britain’s governance has shifted in an unknown direction. Everyone is polite about the Queen’s role. None of that changes the fact that the Monarch acted to close down a democratically elected chamber. 

That’s the stuff of third-world juntas. Perhaps the lack of a written constitution isn’t such a great idea? Anyway, Brenda probably has more to fear from the antics of her favourite son. ​

Meanwhile, at the moment, Britain’s often applauded democratic institutions are looking absurd and dysfunctional.