AN INADEQUATE CONSTITUTION, Ron Olden
All in all, the Supreme Court judgement on Brexit is, politically, for the best. The Brexit legislation is now near certain to pass through both Houses of Parliament within the next three weeks, and if it doesn’t there would be a General Election in April or May and both the Labour Party and/or the House of Lords would be obliterated for good. That fall-back position in itself might be a good thing.
In fact the way in which the judgement has been constructed now makes it quite easy for the Government to get its way. Perhaps, in the interest of a quiet life, that’s what the Court secretly intended.
I will return to this judgement in a more detailed Article in a week or two. But I would like to offer an early observation arising from this (near) Constitutional fiasco, which demonstrates how hopelessly inadequate our ‘unwritten Constitution’ is. The incident reveals that the ‘Constitution’ is not merely ‘unwritten’, but appears not to exist at all, and operates wholly on the whim of judges. And this malevolent characteristic is intrinsic to much of our legal system, where even junior and casual judges are afforded discretion to do as they like regardless of how ignorant of the relevant law (assuming any such law exists at all), or prejudiced, they are.
Anyone who is willing to spend the time reading this judgement will see how chaotic and inconsistent are the opinions of the 11 Supreme Court judges. And anyone who read the original shambolic High Court judgement, which appeared to miss completely, some points that have now been addressed, will already have been flabbergasted.
Yet our Rights and Freedoms depend solely upon the ‘arbitrary’ decisions upon which judges like this arrive. Their decisions, can properly be described as ‘arbitrary’. Judges of course prefer the term ‘discretion’.
Despite the fact these 11 Supreme Court judges, sitting together, heard the same case in law and have access to copies of the same Legal Statutes and ‘authorities’, they arrived at a variety of diametrically opposing opinions. ‘Law’ let alone fundamental Constitutional principles like this, is supposed to be based on ‘certainty’.
If 11 Supreme Court judges cannot agree upon the simple question as to whom, in the UK, can invoke the stated terms of a prominent provision in an International Treaty, which was itself approved by Parliament and upon which, Parliament itself, delegated to the British people the decision to invoke, the law is by definition ‘arbitrary’. It depends solely upon the unpredictable vote of the judges.
Assuming that some or all of the judges concerned are not themselves dismissed as ‘dishonest’ or ‘thick as two short planks’, it is quite plain that something is wrong with the way in which the Constitution is framed.
Arbitrary ‘Rule by Judges’
The judges arrived at their Brexit outcome by 8 votes to 3. Commonly however, only 3, or perhaps 5, of the 11 Supreme Court judiciary sit in proceedings, and they determine VERY SERIOUS matters relating our Human Rights and Freedoms. When they consider matters like this they determine the very nature of each individual’s existence in the World. For practical purposes they achieve the status of ‘Gods on Earth’. Collectively they have powers historically denied to any properly anointed King of England.
Readers however will notice that determination of our fundamental Rights depends not merely on the arbitrary opinion of each judge, but on who amongst of the 11 judges are actually sitting in the case. Whether or not a case can actually go to the Supreme Court in the first place, is determined by ONE judge alone.
If the usual 3 or 5 judges had sat in this case the judgement COULD have gone the other way with no difference whatsoever in a single detail of the actual case law in front of them. That is not ‘Freedom under the Rule of Law’. It is ‘Serfdom under the whim of judges’.
The only consistent and coherent part of this judgement is the unanimous verdict to the effect that the ‘Devolved Assemblies’ (i.e. glorified local authorities), do not each have its own independent power to veto leaving the EU. Why it was necessary for 11 Supreme Court judges to even consider this bizarre assertion is a mystery. The Court Usher could have worked out the answer, and would have replied ‘obviously not’.
There is even a passage in this judgement (para 163) where Lord Reed, one of the 3 dissenting judges (who actually supports the Government’s position), seems to think that invoking Article 50 ‘merely starts a negotiating process with a view to arriving at a withdrawal agreement’. I’m the last person to agree with Gina Miller, but anyone who’s looked at the few lines which comprise Article 50, and its associated provisions, can see that this assertion is completely factually wrong.
Lord Reed appears unaware, that invoking Article 50 IRREVOCABLY surrenders the UK’s Treaty Rights to remain in the EU, and the other members’ obligations to let us stay. Unless all the members subsequently vote unanimously, to let us Remain indefinitely, and regardless of whether or there is any ‘withdrawal agreement’ in place, we Leave two years after sending the Article 50 letter. This fact is common knowledge and is te very reason why invoking Article 50 is so contentious. If all it involved was Theresa May telling the EU we wish to negotiate some indeterminate ‘withdrawal agreement’ no one would care one way of the other. It could all be determined later.
But, as the High Court itself stated, and which the Supreme Court does not contradict, Article 50 is irrevocable even if the EU did allow us to Remain, and the Government wished to do so, after we’ve invoked it. This error alone indicates that the judge concerned should on this point at least, have supported Gina Miller and not the Government.
The idea that the UK’s legal and ‘Constitutional’ (sic) apparatus is compatible with the minimum standard required by a democratic nation, is laughable. To arrive at decisions of law like this, we might just as well dispense with judges altogether, and have a TV debate followed by a randomly selected ‘phone in poll’. The arrangement would at least offer the benefit of reflecting the public’s own prejudices, as opposed to the kaleidoscope of apparently random observations of a few judges.
Alternatively of course, we might, like any normal country, simply write down on paper a proper Constitution, and leave Senior judges to determine points of law which for one reason or another could not have been foreseen when the Constitution was framed.
The question of who can, and who cannot, invoke the most important single stated provision of an International Treaty, might well be a question unforeseeable to the vast army of hugely paid, lazy and incompetent lawyers involved in these things, but to the man in the street the question is an obvious one to which to provide advance guidance.