Posted: 27 Sep 2019 02:03 AM PDT
The Prime Minister’s decision to prorogue Parliament has been declared illegal by the Supreme Court. The only direct effect of the judgement is that Parliament has re-opened and the Government will have to face its questioning and scrutiny. While watching Parliament has been a fairly dispiriting experience over the past few months, it is hard to argue against the proposition that Parliament should be asking questions at this crucial time in our national life.
What was the ruling about?
Should Governments be able to avoid scrutiny at will?
The case was that brought because the Government shut down – or prorogued – Parliament for 5 weeks. It used a power designed to close Parliament for a short period before introducing a new raft of legislation in a Queen’s Speech. Those challenging the Government said such a long shutdown of Parliament at this time was an abuse of its power.
The Government’s argument in court was fascinating – if a little worrying. The Government argued that it could use this power to shut down Parliament as it pleased and that this was a political matter where the courts should not intervene. In essence the Government claimed the right to shut down Parliament at will, without challengeable reasons and for prolonged periods.
The Supreme Court unanimously and vigorously rejected this idea. They confirmed the principle that Parliament is sovereign and stated that the Government could not act in a way that prevented Parliament doing its duty – which includes scrutinising the actions of the Government.
Did the Government lie?
Rightly people are asking if the Government lied or misled the Queen about its intentions when it shut Parliament for 5 weeks. The Scottish Appeal Court ruled that the Government had not been honest about its intentions. The Supreme Court judgment however was not interested in that question. It said the effect of closing Parliament for 5 weeks was to stop it doing its constitutional duty – so it doesn’t matter if that was by accident, design or unhappy coincidence.
The Government declined to provide sworn evidence as to its intention in proroguing Parliament, and the Supreme Court’s decision did not require it.
Is this a power grab?
The long lasting effect of the ruling is to place a new legal framework around how the power to prorogue Parliament is used by future governments. Some may prefer the less legalistic light touch and flexibility of this power being exercised by convention. They have a point: legal rules have problems and expand the realm of the courts.
The problem is what happens when Government – or Parliament – abuse their powers? Conventions are only effective when those with power are able to exercise self-restraint. In this pitched battle over Brexit, self-restraint has gone out the window. It is therefore inevitable that when freedoms are abused there are counter moves to curtail them.
Parliamentary scrutiny is important
Much of the press coverage of Parliament is about the shouting and perceived drama of the main chamber. However, a great deal of the most important work is done in select committees and written questions, where MPs get to examine the detail of what government is doing and expose its weaknesses and inconsistencies.
Scrutiny is widely acknowledged to a vital part of making good law and good policy – as well as being annoying to governments who want to press on quickly. It is an important process at any time, but as the UK approaches the enormous political, operational and administrative changes needed for Brexit, it seems absolutely essential. It is particularly worrying that the Government has gone to such extraordinary lengths to avoid it.
Churches, church members and their MPs have asked what the effect of a No-Deal Brexit will be on families locked in poverty. The government has not yet responded, and the only new information we have seen on this matter – which was deeply concerning – was released because Parliament did its job of scrutiny and passed a motion to insist that documents were published.
Why does this matter for Brexit?
The Government has a plan for Brexit which may include leaving the EU without a deal. Parliament is unsure what it wants, but is dead set against a no-deal Brexit. There is a conflict and the attempt by Government to shut down Parliament is the most extreme tactic employed as part of this conflict.
The fight is over an extremely important issue. Both sides have electoral mandates, a belief they are right and a real passion to prevail. However, it increasingly appears that our institutions and constitution are becoming collateral damage in this fight. The Government’s current line of “respecting the judiciary” while openly attacking and disagreeing with the Supreme Court’s judgement is a further sign of the current political fight being prioritised over the long-term wellbeing of our constitutional settlement.
Why does this not matter for Brexit?
The need for a Supreme Court ruling is a symptom of how damaging the Brexit impasse has become to our national life, but the Brexit impasse will not be solved in court. The court re-opened Parliament, but the same issues remain, and Parliament appears unlikely to be able to resolve them – even with extra time.
The question is if we can come to a resolution in a way that is not highly destructive and divisive. Ideas such as Citizens Assemblies have been suggested, but they are not quick fixes, and would require people to many people to climb down in a way that appears unlikely.
Why is this something we should be worried about?
History tells us that Governments find a questioning Parliament annoying and inconvenient. Governments all over the world have sought powers to shut their Parliaments up at vital moments. In authoritarian democracies like Brazil, Hungary and Poland, governments and leaders are quietly amassing greater powers.
In April a Hansard Society poll found that 54% of the UK population wanted “a strong leader willing to break the rules”. I cannot find a similar result in post-war British history. This finding goes hand in hand with other polling around mistrust in politics and a belief that elites are exploiting the ‘ordinary people’. It is tempting to say that exasperation with Brexit has led people to this place and once this mess is over then we will return to being a happy Parliamentary democracy.
I think we would be wise to resist that temptation. Evidence from other developed countries both in Europe and the US is that similar ideas are gaining ground without the spur of Brexit. Elsewhere these ideas are currently linked to exclusive ideas of nationalism – where immigrants and refugees are treated with suspicion and even hostility.
There is a shared analysis that the people who hold power are remote and disconnected from those who are governed. There is an observation in common that people who view themselves as average working folk feel economically squeezed – and this has some basis in fact.
The solutions offered thus far are concerning. There are moves to concentrate power – not in the old elites but in a small number of strong “anti-establishment” figures, who of course claim they act for the people. History is replete with examples which should make us suspicious of this approach – but it also makes little logical sense.
Catholic Social Teaching contains the important principle of subsidiarity – the idea that political decisions should be taken as close to those who will be most affected by them as possible. The answer to rebuilding trust in our politics is not to move power upwards and hope a different group of remote people do the job better. It is to pass power down.
Initiatives such as Poverty Truth Commissions, citizen’s juries, and citizens’ assemblies offer a more hopeful way forward – one that is inclusive and has a recognition of the value of each individual designed in. It is messier, it requires more effort from us as citizens, and the bravery from those who currently hold power to relinquish some of it.
That, of course, is a model of leadership inspired by Jesus, “who, though he was in the form of God, did not regard equality with God as something to be exploited, but emptied himself, taking the form of a slave, being born in human likeness. And being found in human form, he humbled himself and became obedient to the point of death—even death on a cross.” (Philippians 2:6-8)
 The Government noted that Parliament was needed for a few tasks such as agreeing an annual budget or the annual renewal of the Army Act without which the armed forces would need to disband.
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