It’s unfortunate for Remainers that no one ran the campaign based upon the prospect that we would end up with an unappetising mix of European politics and an American judiciary. That might have swung enough votes its way to eke out victory, as Brexit was all about asserting Britain’s role as a colossus bestriding the global stage, distinct from its western cousins. Instead, Brexit has just Europeanised our politics, fragmenting the two party system into at least four; whilst, if those rebelling against the Supreme Court judgment have their way, could yet see it Americanise our judiciary.
Those dissatisfied with the judgment in Cherry/Miller II have been quick to cry foul, claiming that the decision shows the Europhilia and disdain for ‘the people’ that is rife amongst our judiciary, despite the case being, in the government’s own words, ‘nothing to do with Brexit’.
Leave.EU had shareable images ready in advance, complete with labels that showed the ‘bias’ of our judiciary, such as the fact that Lord Kerr had once sat on the European Court on Human Rights. The decision, in their conspiracy-addled minds, is merely one cog in the vast apparatus that the elites are constructing against Brexit.
Also not quick to pass on an opportunity to condemn such elites, Jacob Rees-Mogg, leader of the House, son of a lord and self-proclaimed man of the people, claimed that the Supreme Court had performed a ‘constitutional coup’. Similarly, ‘unnamed sources’ from No. 10 (read Dominic Cummings) suggested that if the courts were going to become so involved in politics, politics would have to become more involved with them. One such suggestion is that Supreme Court justices will be confirmed through parliamentary hearings, like in America.
Such partisanship was claimed to be evident through the fact that the decision was unanimous. Critics pointed to the fact that Miller 1 divided the court, and concluded that because this case was not so divided, it was not a fair decision. Quite why judges who were apparently anti-Brexit in MillerI had become pro-Brexit by Miller IIis a question that has not been answered. Instead, the mere fact that the judges are intelligent, educated and informed seemingly means that they must now be opposed to Brexit.
Rather than show bias, the unanimity of the court shows the egregious nature of the violation by the government. It was the government behaving unlawfully, not the judiciary behaving politically. Unlike Miller I, where the court was divided on how executive power could be used to affect domestic rights, Cherry/Miller II was much more fundamental. It did not concern mere rights, significant as they are, but went to the very core of the constitution- where does the power lie? Given the system of parliamentary sovereignty that Britain operates under, the Supreme Court had little choice but to inhibit the power of the executive.
Of course, there is the decision of the High Court, and the fact that Geoffrey Cox, the Attorney-General, had written an advice concluding that such prorogation was legal. The High Court was not wrong to decide as it did, and nor was Cox wrong to advise as he did. The calls from some quarters for him to resign are utterly misguided. However, nor was the High Court correct, as the decision of the Supreme Court has shown. The Supreme Court’s decision, whilst not as revolutionary as some have made out, was significant, concluding that Parliament’s dominant role in our constitution is not something that is just political, but insulated by law.
This was the only real part of the judgment that could be seen as unprecedented. As Jack Simpson Caird has written for the UKCLA Blog, prior to Miller IIthere were two competing visions of the constitution. One, the Whitehall Model, viewed the relationship between the executive and parliament as purely political, with ultimate accountability resting with the people. The Westminster model, in contrast, takes the view that the relationship between the two rests upon constitutional principles that are potentially enforceable by the courts. For the High Court, to leave such a question to the Supreme Court was not necessarily inappropriate.
The fact that this judgment has protected the very principle that Brexit was allegedly in pursuit of, the supremacy of Parliament, has not inhibited the calls for our justices to be scrutinised by and appointed through the legislature. This weekend, the prime minister suggested to Andrew Marr that if judges are to ‘pronounce on political questions’, there must be ‘some form of accountability’.
If such a reform takes place, rather than the dignified and relatively quiet process by which the justices are currently appointed (and a process that is much improved from the previous ‘tap on the shoulder’ method), we will see a raucous circus.
Setting aside the infinitesimal likelihood of such fundamental reform ever making its way through Parliament, this deference means that there would be a dearth of meaningful questions for the justices to be asked. Few of the constitutional and rights-based matters that come before the courts bind the political branches’ hands (even Miller II could have been overridden if Johnson wasn’t so desperately short of a majority), and most major constitutional cases hinge on the points of principle and fact that are unique to the case. Framing questions around this would be pointless. I suppose the judicial candidates could be asked questions like ‘should the government be able to send away parliament whenever it wants’ and ‘should parliament be able to pass legislation that prevents the courts from protecting peoples’ rights?’. This, however, would seem a peculiar approach.
Of course, being unlikely does not mean impossible in British politics any more. In our topsy-turvy politics, it could almost mean it is likely. Should the impending general election lead to a Brexit/Conservative majority, judicial reform is not beyond the realm of possibility. And whilst the appointments process is likely to be safe, discussions like judicial reform widen the Overton window – the range of ideas deemed to be acceptable by the public – making reforms of more vulnerable areas, like human rights, seem less extreme and more palatable.