Here’s how the Government can avoid a rerun of Boris versus The Supremes

The judges’ ruling against prorogation last year revealed the weaknesses in this flawed institution

If we are to get the future after Brexit right, we must restore and develop a strong British constitution. To do this, we must first win a battle for history. The wrong history of Brexit will see it as a contest between ruthless “populists” and righteous persons determined to resist anything that could have “an extreme effect upon the fundamentals of our democracy”.

Those persons – righteous in their own estimation – were, first, the then Speaker, John Bercow (plus a clutch of Remainer MPS), and secondly, the 11 judges of the Supreme Court who, on September 24 2019, declared that Boris Johnson’s attempt to prorogue Parliament for a few weeks was “null, void and of no effect”.

This week, there is reason to write about both. As Mr Bercow struggles – comically clinging to the conventions which, in other spheres, he joyfully ditched – to get a peerage, his record is being assessed. It has at last been stated unambiguously in public that he may not have been the perfect boss – self-aggrandising, shouting, allegedly bullying, and generally stamping his little foot. These are powerfully expressed accusations, but one should, in fairness, point out that they have not yet been tested.

Mr Bercow has also revealed sensitive private conversations with colleagues and officials, without their permission, in his hurried, well-paid memoirs. Such complaints are true and damaging. He has been rebuked by the parliamentary authorities.

But the key reason why Mr Bercow deserves no advancement is different. It is that, as Speaker, he broke the parliamentary equivalent of the Hippocratic oath. He abandoned the impartiality which is the most basic principle of his job. And he undermined the vital convention of the British system, which is that we govern, as the stock phrase puts it, “through the House of Commons”.

The British convention is that Parliament has ultimate authority because the Government cannot continue without its confidence, but that it otherwise has a duty to let the Government govern. This means, procedurally, that it must allow the Government to set the business of the House. From the 19th century, this was never questioned – until Mr Bercow. To frustrate Brexit, he decided that he would let Remainer MPS take control of the order paper.

The same Remainers could agree only on what they didn’t want, not on what they did. They were too scared to permit the logical result of deadlock – a general election. The result was angry stasis, with government unable to govern. So, to break this unconstitutional logjam, Boris Johnson asked the Queen to prorogue.

It was this Bercow-created situation which led to “Miller 2”, the Supreme Court case.

Obviously, the judges of the Supreme Court are very different characters from Mr Bercow. By training and inclination, impartiality is their watchword and understatement is their manner. When they pronounced in Miller 2, many naturally supposed they had deliberated most carefully, blind – as justice is supposed to be – to the bright lights of political drama and media celebrity.

I feared at the time that this was not wholly the case. They were becoming a band – working-title: The Supremes. I was suspicious of the judges’ rare unanimity (in the English law tradition, there are often important dissenting judgments), of their haste, and of their then president, Lady Hale, with her spider brooch, her air of ill-suppressed excitement and her propensity for sounding off out of court. I noted their unusually rhetorical way of talking. That phrase about the “extreme effect upon the fundamentals of our democracy” comes from Miller 2. It is the sort of thing that politicians, not judges, usually say.

I also noticed that their tone of angry dismissal led them to contradict themselves. At one point, they declared they could not know what reasons the Prime Minister had conveyed to the Queen, who was sitting in council at Balmoral, for seeking prorogation; yet they also said that the advice he gave her was “unlawful” because it was “a nullity”. If they did not know what he had said, how could they judge it? Did Mr Johnson’s prorogation frustrate the constitutional role of Parliament? “Of course it did,” chorused The Supremes, as if this was self-evident. It was actually hotly disputed.

Many millions of the public felt worried, but we are people unversed in the law. So it is helpful to have our worries learnedly justified by Prof John Finnis of Oxford, arguably the most distinguished academic lawyer of our time. In a forthcoming pamphlet for the think-tank Policy Exchange (The Law of the Constitution before the Court), Finnis identifies the problem with the Miller 2 judgment. He says it runs deeper than carelessness or haste.

In his view, the Supreme Court judgment goes against our history and our law, and produces “a constitutional unsettlement”. Ignoring the arguments that the Divisional Court had already made the other way, it tramples over a central feature of our Bill of Rights of 1689, which protects political liberty by insisting that no “proceeding of Parliament” should be “impeached” in a court.

The Supremes danced round this problem by asserting that prorogation is not a proceeding of Parliament. As Prof Finnis sets out, this had never been successfully argued in any court in any Westminster-style constitution (ie, the United Kingdom, Canada, Australia etc). It is rejected by Erskine May and all the great experts on the constitution. There is “no authority, no case law, no textbook” for last September’s judgment, says Finnis.

Like other acts of the Crown prerogative which involve what the law calls “high politics” (as opposed to individual rights), it is, says Finnis, “a well-established legal rule that prorogation by the sovereign … is non-justiciable”. So The Supremes strutted in where all previous judges had feared to tread. If they feel free to forbid the prorogation of Parliament, they could equally destroy another Crown prerogative – the right to decide whether to dissolve it: they could prevent a general election. That really would have an “extreme effect upon the fundamentals of our democracy”.

So the Miller 2 judgment was the most political act by our judges in modern history. It may have been, in part, motivated by groupthink against Boris and Brexit, but it was even more an attempt to assert who’s boss. It was certainly driven forward by Tony Blair’s creation of the Supreme Court to replace what used to be known as the Law Lords. The very title implies ultimate judicial power of a sort that refashions our constitution along continental or American lines incompatible with our own belief in the supremacy of the voters’ elected representatives. The first, best rebuttal of the court’s pretensions was the thumping result of the December general election.

Now legislative action should result. When the Government abolishes, as promised, the Fixedterm Parliaments Act, it should find a way of restoring the non-justiciable prerogative right of prorogation in its repeal. It should look again at the “independent” panel for appointing judges which gives the current establishment almost untrammelled power to replicate its own.

It should also abolish the title of Supreme Court and rename it the Upper Court of Appeal. It might even move its premises. On their website, The Supremes boast that their new location (the Law Lords never had a separate building) “is highly symbolic of the United Kingdom’s separation of powers, balancing judiciary and legislature across the open space of Parliament Square”. Such a formal separation of powers never existed before in this country. We would be better off without it.

read more at telegraph.co.uk/opinion