“It is impossible for us to conclude, on the evidence which has been put before us that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks.”Lady Hale, President of the Supreme Court of the United Kingdom
In my second post I discussed the potential ramifications of the Supreme Court agreeing with the Court of Session on declaring unanimously that the advice given to the Queen by the Prime Minister was unlawful. I said that this case would be the UK’s version of Marbury vs Madison and I stand by what I wrote. This decision has shaken up the balance between the branches of UK governance, it now proves the executive can be blocked by the judiciary and by extension it could be argued so could the legislature. Observing the media coverage ignoring the political views behind the various statements, the underlying point being put forward by those who disagreed with the ruling was this: Could the Supreme Court do this?
The answer to that question for anyone who is unsure is yes. The Supreme Court through the power of judicial review has the right to do that on any case it wishes. However in the United Kingdom with its unwritten constitution, having the constitution change on a whim and powers based upon convention as opposed to recorded in law is troubling to many including myself. Has the time come to follow in the footsteps of our ally across the pond in writing a constitution establishing the powers and responsibilities of the branches of governance, including that of the monarch?
There are very clear advantages to having a written constitution, it sets out process and procedures for a great many matters of governance to the point where there can be no question over what it is each branch has responsibility for. In the case of addressing the fears of those upset by this decision of the Supreme Court, making it clear in writing that the role of the Court is one of being reactive as opposed to proactive. It would also explain formally the role of the monarch and show how much digression they have with their prerogative powers.
However it is the disadvantages of the written constitution as modelled by the United States is arguably the reason why the current unwritten constitution is valued so highly. The amendment process makes a fast change to the constitution impossible, creating a situation where if a need was required for a quick change it could not happen something the United Kingdom would certainly struggle with. However it could be tempered with a weaker amendment process than in the United States, yet I doubt many would seek to have a situation which mirrors the 18th and 21st amendments to the United States constitution. (The prohibition and reintroduction of alcohol.)
I am not arguing for a written constitution nor am I arguing for the constitution to stay unwritten and in a future post I will go over in a much greater detail the advantages and disadvantages of both. The point of this post is a simple one, the Supreme Court with this one decision has changed how governance in the United Kingdom happens in such a way that the UK hasn’t seen since the Glorious Revolution.
I for one am proud of the Supreme Court for making themselves heard and perhaps feared as an institution and they were right for the decision to have to be unanimous or else there would be cause for challenge in the future. The Court after all is neutral and cares little for politics, as Lady Hale stated at the beginnings of the case, it cares for constitutional matters. Therefore to those who were upset with the ruling, it goes without saying that the next ruling has all the potential of going the way you desire. The Court rules only on the merits of a case. Like John Marshall, Lady Hale has overseen the Supreme Court truly make its mark upon the United Kingdom, yet the ripples of this will only become clear with time.