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英国宪法卫士发起反击

Sep 26, 2019 Nicholas Reed Langen

伦敦——美国宪法不是“自杀协议”，这是美国最高法院法官罗伯特·H·杰克逊在其著作中的一句名言。但对英国首相鲍里斯·约翰逊而言，英国未经修改的宪法可能被事实证明具有自杀性质——至少是对他的政治生涯而言。本月早些时候，在英国最高法院一致裁定约翰逊推动议会修会的行为非法之后，约翰逊身为英国领导人的任期就面临着严重的危险。

值此整个西方世界因民粹主义领袖引发的宪法巨变而变得四分五裂之际，英国法院做出了这一裁决，这场法治和“人民”执政之间的冲突由民粹主义领导人挑起，而所谓的人民意志则由民粹主义领导人说了算。大西洋两岸的民粹主义政府均已打破宪法传统和惯例，为攫取任何可能的优势而不再遵守先例，就像约翰逊在寻求议会休会时的所做所为。

此前，议会开会问题极少引发争议。正常状况下，下议院的绝大多数席位由政府控制，可以推动立法程序。但在寻求让议会休会五周，而不是典型的4~5天的过程中，一个显而易见的尴尬事实是这不是一次正常的休会。约翰逊作为一位几乎无视事实的首相，愚蠢地声称这5周休会期与议会通常的9月休会相关。各主要政党通常在这段时间内举行会议。但约翰逊显然关心的是让议会阻止他寻求无协议脱欧的能力降到最低。

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0 Comments on this paragraph, 6 Comments on this article

John Sweeney Sep 29, 2019

Ho ho! The UK "Supreme Court" didn't even exist until the EU mandated its creation. Its ruling is just the EU meddling in British politics -- precisely the sort of exercise that brought about the Brexit vote.
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New Cavendish Sep 29, 2019

This is a great article, well articulating the import of the Supreme Court's action; however, the headline is debatable. The Supreme Court is not per-se a "constitutional guardian"; rather it is the guardian of the rule of law, in the great tradition of the Common Law courts, as illustrated by the 1610 King's Bench decision cited below and by other famous decisions, such as Lord Mansfield's judgment finding chattel slavery contrary to the common law. The point is important because the tendency to exaggerate the role of the Supreme Court will play into the hands of Johnson and his ilk (cf. his comments today about "holding the judges accountable"). The Court would not overrule a legitimate Act of Parliament. It upholds parliamentary democracy and the sovereignty of the Crown in Parliament. That's quite different from the role of the US Supreme Court in holding Acts of Congress subject to its constitutional interpretations. Parliament could always change the law. Until it does, it is the role of the courts to put on their wigs and defend the rule of law against all challenges, popular or not.
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About Face Sep 29, 2019

Prorogation of Parliament has nothing to do will the will of the people - don't get confused. Its Boris, exercise of his what he thinks, his executive prerogative. Of course, he was unlawful but Brexit was a lawful exercise, with an outcome that is ....hmm....unspeakable.
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John Alexander Sep 29, 2019

‘Rather than yielding to some concocted “will of the people,” these institutions have emphasized that some principles are beyond majoritarian whims.’

Nicely put. As an elderly, law-abiding holder of a British passport, hence also a citizen of the European Union, I am sick to the teeth of hearing Theresa May, Boris Johnson, and many another politician tell me about “the will of the people”. These are politicians who wholeheartedly, even in the face of global warming, endorse an economy based largely on the feverish, frenetic, unceasing, and ubiquitous generation of artificial demand. They are not highly intelligent, but they do have enough intelligence to know that the public will is open to systematic influence, whether through massive advertising or through their own sophistical propaganda. They cannot be taken seriously, except insofar as they are conceivably leading humanity to extinction.
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j. von Hettlingen Sep 26, 2019

Nicholas Reed Langen says , the UK Parliament and Supreme Court “should be seen as the vanguard of resistance to populism.” The Supreme Court, which will be 10 years old on 1 October, is the highest court in the United Kingdom, sitting opposite the Houses of Parliament. Its location symbolises the relationship between the two: Parliament makes the laws, and the Supreme Court decides on the correct use of those laws when there is a dispute.
If the justices think a law conflicts with human rights safeguards, they can tell Parliament to reconsider the legislation. They have the final say on the biggest legal issues and exercise the ultimate check and balance on the UK's laws and constitution. And Brexit raises what they consider to be a genuinely important point about how the UK's laws should be interpreted and applied.
This week the court’s 11 justices ruled unanimously that Prime Minister Boris Johnson's decision to suspend Parliament was unlawful, after a three-day hearing last week to resolve contradictory judgments made by Scottish and English courts. “The quashing of Johnson’s prorogation was extraordinary, but both constitutionally correct and necessary.”
The court was told that “the mother of parliaments [is] being shut down by the father of lies” - Aidan O’Neill QC, counsel for the SNP MP Joanna Cherry and other parliamentarians challenged the government’s decision. As Parliament had not been prorogued, its members could return and resume their duties.
The government had argued that the prime minister’s decision was purely “political” and there are no absolute legal standards by which any court can judge whether his actions were proper or not. According to the author, it would have been reasonable for the Supreme Court to find the prorogation lawful, from a purely political perspective, After all, prorogation is nominally the sole prerogative of the executive. But the justices made it clear that there was no dilemma of law versus politics.
The author says, “rather than yielding to some concocted ‘will of the people,’” the Parliament and Supreme Court “have emphasized that some principles are beyond majoritarian whims.” One of the first fundamental questions for the justices was whether Johnson’s private advice to the Queen to prorogue parliament was a proper or improper use of the government’s executive powers – that is, whether the justices have the power to intervene in a prime minister’s decision.
They concluded that the suspension had been enforced by Johnson purely as a device to stymie MPs’ scrutiny of Brexit policy at a moment of national crisis. Lord Pannick maintained that Parliament is sovereign. For the government to use its power to evade that scrutiny overturns the basic principles of constitutional law. Johnson was motivated by an “improper purpose”, namely to avoid parliamentary control over his policies.
The author says, the court “did acknowledge that this was terrain in which it would interfere only in exceptional circumstances. The government must provide reasons, but in considering those reasons,” the court would give them “a great deal of latitude.” However the government had not given a statement to the courts, and would not have recommended a five week-long prorogation unless Johnson had wanted to avoid being challenged.
Conservative MPs like Ken Clarke, Dominic Grieve, Philip Hammond, Rory Stewart, Sir Nicholas Soames – Churchill’s grandson – were “willing to sacrifice their political careers to constrain an overreaching government.” The heroes “personify the need to put such principles before party loyalty.” The author says this is a lesson for the Republicans, who stand by their mendacious and corrupt president, to learn. Trump does not respect the rule of law and the values that underpin the Constitution, and they pledge “a greater loyalty to their political tribe than to their country.”
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vivek iyer Sep 26, 2019

This article does not clarify the background to this case. The Supreme Court only came into existence 10 years ago because of the Constitutional Reform act of 2005 which was designed to bring British law into conformity with European law. Furthermore, the Scottish legal system has always been separate- indeed it has its own terms of art unfamiliar to those South of the border. The English tradition, unlike the American, has always been to afford greater latitude to the Executive. Thus an English high Court sided with BoJo but Scotland's highest court, as this article mentions, came down heavily against him. This placed the Supreme Court in a ticklish position. However, people could see for themselves that Lord Pannick was mopping the floor with Lord Keen, the Government's attorney. It would have been difficult for the Bench to decide in any other way.
It should be mentioned that we have an unprecedented situation because of the coalition government's thoughtless passing of a Parliament Fixed Term act which took away the PMs discretionary power to call an election. Previously, Corbyn had let Theresa May call an election and BoJo hoped that Corbyn could be baited into accepting the same challenge this time. Now, we are in uncharted waters. The British constitution has been changed by a series of accidents. The irony is that Brexit has made it more 'European' in the sense of increasing justiciability and reducing the scope of the doctrine of political question.

It remains to be seen whether voters think BoJo is mendacious as opposed to amateurish. It may be that Leavers prevail in a General Election. If that happens, it is likely that the power of the Judiciary will be pruned back because it was only the need to conform to what Europe required would no longer obtain. Thus, it would be wrong to see this case as having to do with resistance to 'majoritarian whims'. Had BoJo a stable majority, the argument could have been made that prorogation couldn't stymie anything save a nuisance. However, everybody could see that Tory MPs- including BoJo's brother- were defecting right and left or had had the Whip withdrawn. Thus, this judgment- though it may become a landmark- is the product of unusual circumstances which may well be utterly changed by a General Election.
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