The Rule of Law: part 2

The Rule of Law: part 2 Share

Following up on our introduction to the Rule of Law earlier this month, this week we’re going a little more in-depth, looking in particular at the sometimes blurry lines between politics and law. But don’t worry, we’ve made it as simple to understand as possible!

Background

On 24 September 2019, just two weeks after Parliament had been controversially prorogued by Prime Minister Boris Johnson, the UK Supreme Court handed down a unanimous judgment holding that such prorogation was ‘unlawful, null, and of no effect’. But what have we learned from this case about the limits of executive power?

Prorogation ruling

The Supreme Court held that it was, by precedent and constitution, bound to determine the limits of the exercise of legal power, recalling its centuries-old supervisory jurisdiction over the lawfulness of government acts.

It held that the exercise of the power to prorogue without reasonable justification to prevent Parliament from carrying out its constitutional functions was unlawful. The Court also quashed the Order in Council, otherwise known as the exercise of the Queen’s power, as likewise unlawful.

Upholding the rule of law, not the rule of politics

The central argument of the government was that using the prerogative power to prorogue was a political, not legal, question – and as such not justiciable: ‘If Parliament had a problem with it, it was for Parliament to sort it out’. The Supreme Court’s answer was that where such accountability to Parliament was not possible (as in the case of prorogation) – it was for the judiciary to step in and ensure that the executive did not abuse their powers. The fact that ministers had political accountability to Parliament did not negate legal accountability to the courts: this judgment upheld the rule of law, not the rule of politics.

The judgment has not been without (unfounded) criticism, however, which has been regarded as part of a wider campaign to deliberately seek to present the courts as ‘too political’. Leader of the House of Commons Jacob Rees-Mogg called the judgment a ‘constitutional coup’, while the Prime Minister expressed his ‘strong disagreement’ with the unanimous judgment.

Therefore, there is a now a case for ‘judicial reform’ (akin to what has been used in Poland to eradicate judicial independence) to limit the power of the courts. The Prime Minister is mooting appointments to the Supreme Court to be made along partisan lines, as in the US. However, lawyers argue that if judges are thought to be ‘too political’, and so must be appointed by politicians, then this would only serve to entrench a political slant to the courts. Rather, the independence of the judiciary is a principle of the rule of law, not only because it ensures equality before the law, but because it roots the authority and legitimacy of the judiciary as upholding the law – not their own political preferences. 

A gentleman’s agreement?

Brexit is testing the boundaries of the separation of powers, requiring the Court to answer rare and urgent questions of the meaning and scope of parliamentary sovereignty, the limitations on executive power, and the justiciability of political conventions. The UK’s ‘political constitution’ rested on conventions being conventionally applied without the need for legislative footing or judicial intervention. But, as the saying goes, a gentleman’s agreement lasts so long as there are gentlemen – not an agreement.

Spain, Catalonia and the rule of law

While the UK, Poland and Hungary all walk the dangerous line of politicising their judiciaries, you may also have read about the jailing of some politicians in relation to Catalan’s independence movement, which also crosses into this territory.

In this regard it is worth clarifying that none of the Catalan independence leaders has been subject to trial for their ideas, but for their criminal conduct as defined by the law. The supreme court has sentenced some of them for participating in deeds against the rule of law, such as enacting laws repealing the Spanish constitution in Catalonia, depriving Catalans of their own rights, as well as disobeying rulings from the constitutional court.

The supreme court ruling can be argued to have put an end to a judicial procedure that has been an example of accuracy, openness and assurance of the rights of the defendants – leading to even more uproar in Spain and beyond.

So whatever difficulties it might look like we are going through in the UK at the moment, remember that the rest of the world might be having its own legal and constitutional problems too.