Mal Fletcher
Supreme Court: Serving or Subverting Democracy?

Has the British Supreme Court today served democracy or subverted it? 

A good many Brits may be asking just that question, following today’s ruling that Prime Minister Boris Johnson’s recent recommendation to the Queen, that Parliament should be recessed, was illegal. 

The recess process, known as proroguing, takes place in the lead up to a Queen’s speech, in which the head of state outlays her government's major policies for the new parliamentary season.

In summing up the unanimous decision of the twelve justices, Lady Hale reiterated the Court’s commitment to stay out of party politics. She did, however, add that the circumstances of this prorogation are ‘unlikely’ ever to occur again.

With due respect to her ladyship and her eminent fellow judges, I think this is misguided. This type of situation, where courts are involved in questions about proroguing, will almost certainly recur, simply because the Court has now opened the door. 

Like it or not, we will see other cases in which a prime minister, in calling for a recess, is threatened with court action. 

To a degree, despite its protestations to the contrary, the Court will be perceived, by many members of the public, to have strayed into politics.

The 1689 Bill of Rights is the closest thing Britain has to a written constitution. It says: "proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament." 

This suggests a valid question: why was the Supreme Court ruling on a question of established parliamentary procedure in the first place?

Especially when the current parliament has long attempted to frustrate the will of the electorate, as it was expressed in a legally valid - and therefore binding - referendum. 

The dominant public perception - and not just among Leave voters - might well be that the eminent justices have worn their Remain preferences on their sleeves. 

I cannot see in Parliament's recent behaviour any respect for the majority's wishes.

I voted Remain in 2016, but I do not share the abject despair expressed by many Remainers when it comes to Britain’s post-Brexit prospects.

Whichever side of the fence they sat on at the time, most people understood that the 2016 referendum was intended to be much more than an opinion poll. 

It was a decisive exercise in which the will of the people would be respected. This was the avowed position of every major political leader, on both sides of the debate.

People did not vote on the assumption that Parliament would obey their instruction only if it saw fit.

They believed that, because Parliament answered to them, it would take the country out of the European Union, if that's the way the majority voted. 

And that government would work hard to do this by the most expeditious and manageable way possible.

I doubt that very many Leave voters made this choice thinking that the process would be easy. A few perhaps, but not the majority. 

Having first joined the European Economic Community, the precursor of the EU, more than 40 years previously, Britain could not expect to extract itself without patience and painstaking effort.

Many Leave voters, I suspect, imagined that there would be a few years in which difficult adjustments would have to be made. However, they would have felt that the long-term benefits of opting out would eventually outweigh any medium-term pain.

This thinking was especially understandable given the insecurity surrounding the Euro and mass migration crises, both of which provided a backdrop to the referendum - and both of which provided examples of poor EU leadership.

My own vote was cast with strong reservations regarding the proverbial elephant sitting in the EU’s front room - the idea of “ever closer union”.

It's only now, long after Britain's vote to leave, that some prominent European leaders have come completely clean about their desire for federalisation. 

Britons have always been suspicious of the EU’s grandiose sentiments on that score. 

In the early days of Britain's EU membership, Brits were relatively comfortable with the reality of a common trading community. Britain is, after all, a mercantile nation. 

However, British people, on the whole, have never liked the idea of being governed from beyond their shores - and especially not by what they’ve seen as a largely unelected bureaucrat class.

To this day, if the EU had proven that a trading pact was the extent of its ambitions, I think the 2016 result would have been different. 

I also believe that if in their pre-referendum negotiations with David Cameron, EU leaders had been less belligerent, arrogant and elitist in their demeanour, the vote might have been closer.

The Supreme Court has said that it was only interested in matters of law and that it was justified in hearing this case because two lower courts have already been involved with similar cases. 

A key factor in the Courts verdict seems to have been the length of the prorogation period and the timing of it in light of Boris Johnson’s pledge to take the UK out of the EU by October 31.

There are three responses to this. First, some previous governments have called for longer recesses than this one. 

Second, it is always assumed that there will be some level of political advantage for the government in the timing of a prorogation. 

Third, this particular Parliament has continually set out to frustrate the express will of the people, as it was expressed in a legally binding referendum.

 In carrying out Brexit, Parliament should answer - and be seen to answer - to the people, not the courts.

Unless, of course, Supreme Court justices are willing to stand for public election.

In conclusion, I offer a few thoughts on some of the individual players in this Supreme Court saga. 

One, in particular, has covered himself in shame. By joining a case against a government of his own party, former Prime Minister Sir John Major exhibited a striking level of hypocrisy. He used prorogation for political ends during his own premiership.

Apparently, Sir John believes that the right to seek political advantage is acceptable for every premier other than Boris Johnson. 

Mr Johnson was a Brussels-based journalist at the time Sir John occupied Downing Street. His Eurosceptic missives irritated the then prime minister, who is now, it appears, more than a little motivated by a desire for vengeance.

The activity of businesswoman Gina Miller is also worthy of note. 

Late in 2016, Ms Miller launched a court case against the government of Theresa May. The High Court ruled in her favour, saying that Mrs May could not launch Article 50 without first taking the matter to parliament. 

If that outcome had aided the progress of Brexit, Ms Miller’s contribution may have been remembered, by many more people, as a constructive one.

However, that verdict was not enough for this activist. She wasn’t concerned with the courtesies or legalities of parliamentary procedure - and she isn’t today. 

The 2016 referendum result did not go the way Gina Miller had hoped, so she single-handedly decided that Brexit must be blocked, if not in the cabinet room, then in the parliament and the courts.

Her resilience is to be admired, especially in the face of threats she received on social media. But her assumptions are askew.

She believes - as do some former political leaders - that Brits who voted to leave the EU are either too callow or ill-informed to know what is best for them. So, they must be forced either to vote again on the matter, or to abandon their goals altogether.

A second referendum is now the central plank of party policy for the Liberal Democrats - even though its members, like the majority of the House of Commons, voted in 2017 to kick-start Article 50, the formal process of divorce from the EU.

The Lib Dems presumably now wish to change their name to the Liberal Non-Democrats.

A second vote will solve nothing. It will create even more problems; not the least of which would be a significant boost in the public’s already historically high level of mistrust in politicians. 

It would also create more than a small shadow of doubt when it comes to future votes. When future politicos looked for public support for any party platform or policy, people would respond: ‘If you ignored us on the biggest issue of our lifetimes, how can we believe you will ever listen to us again?’ 

Though many won't admit it today, Remain voters would have these same doubts.

Democracy breaks down when there is no public trust. It breaks down, too, when accepted parliamentary procedure - accepted by convention, if not by written code - is second-guessed by the Courts. 

It is in danger of fracturing altogether when members of Parliament effectively rely on legal manoeuvres, to delay carrying out their proper duty to the people. 

Mal Fletcher (@MalFletcher) is the founder and chairman of 2030Plus. He is a respected keynote speaker, social commentator and social futurist, author and broadcaster based in London.

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