Judicial review? No, judicial vandalism

The Supreme Court denied the legitimacy of Johnson’s prorogation of parliament. I wish someone denied the legitimacy of the Supreme Court.

The lady has become a tramp

This upstart body, barely 10 years old, has managed to poison the spirit of a constitution that has existed for centuries.

Whatever the official charter of this retarded child, it was conceived by Blair and delivered by Brown for one overarching purpose: to act as the British gauleiter of the European Court of Human Rights.

Its shrill birth cry muffled the quiet voice of the world’s oldest and most successful polity. And now the decibel level has grown so high that people turn deaf to the overtones creating a destructive resonance.

By contrast, the post of the Lord Chancellor predates the Norman conquest, while that of the Lord Chief Justice has existed since 1268. Thus their legitimacy is organic, a product of the entire history of the realm, rather than recent political shenanigans.

Those two offices have been remarkably, uniquely successful in preserving our constitution through historical vicissitudes and tribulations. That’s why they had to be supplemented – and in this case superseded – by another institution, concocted by a government that did more than any other to undermine that constitution.

A fortnight ago, the holder of one of those ancient offices, Lord Chief Justice Burnett, ruled that the prorogation was a political, not legal, matter. Enter the Supreme Court, the illegitimate child of politicking.

But of course it’s a legal matter, ruled the 11 judges, all passionate Remainers. (One of them was my neighbour and – until my article attacked him for another pro-EU ruling – a friend.) Everything political is legal and everything legal is political, provided we can dismiss the overwhelming public mandate.

That’s why The Mail’s comment on this outrage is so risible. While generally disapproving of the Supreme Court’s decision, its editorial issues an asinine disclaimer: “Whether the Supreme Court’s judgment was constitutionally appropriate, only history will decide… And no one suggests for a second that the Supreme Court acted out of political animus.”

Not ostensibly, it didn’t. But surely the judges knew that their ruling sabotaged Brexit, and surely they were happy about it – and surely they were aware of their natal raison d’être?

We don’t need history to decide “whether the Supreme Court’s judgment was constitutionally appropriate”. That exercise of judiciary activism was constitutionally vandalistic, which is instantly obvious.

No doubt constitutional lawyers will be arguing for years about every comma, hyphen and colon of the law, and I’m in no position to join that argument. Neither is The Mail, by its own admission.

But it’s clear that Boris Johnson, while perhaps negligent about those punctuation marks, acted to prevent one of the most egregious power-grabbing coups ever attempted in Britain.

I’m not suggesting that the letter of the law should be ignored – only that we’re going through desperate times that, if Guy Fawkes is to be believed, call for desperate measures. Legalistic casuistry shouldn’t be allowed to become a constitutional suicide pact.

The on-going coup is trying to upset the traditional balance of power and sovereignty that adds up to the constitution of the realm. Or perhaps it would be more accurate to say that it’s trying to upset the balance more than it was already upset by previous outbreaks of constitutional vandalism.

Over the past few decades, the House of Lords has been neutered and turned into something it was manifestly designed not to be: a body of mostly appointees beholden to party-political pressures.

The sovereignty of parliament effectively became the sovereignty of one of its two Houses, the Commons. Long before that the monarchy had been divested of executive power, which had been transferred to the prime minister and his cabinet.

Underlying and enabling the sovereignty of parliament was the sovereignty of the people in whose name parliament acted. As a result, Britain’s constitutional balance became more convoluted and, to my mind, less organically legitimate than in the past. But at least a semblance of balance existed.

No longer. The on-going coup has rendered the executive impotent and the people effectively disfranchised. In reality, power has been usurped by the political apparat, manned exclusively by cross-party EU quislings.

I can’t think of many definitions of high treason that wouldn’t cover this bout of constitutional sabotage. And this is what Johnson tried to stop – perhaps clumsily, heavy-handedly and not entirely disinterestedly.

But stop it he tried to – and failed. The quislings in parliament and the Supreme Court are doubtless high-fiving one another. Their hatchet job has been done, and it has been done expertly.

One should praise them for their deftness while rebuking them for their mendacity. Their battle cry is ‘stop no-deal Brexit’, which is a lie. It’s not no-deal Brexit they want to stop, but Brexit tout court.

Otherwise the wish to take the no-deal option off the table is too inane even for them. That’s tantamount to a negotiator telling his opposite number: “These are my terms. But if you don’t like them, I’ll accept any other.”

Under such circumstances, all the EU can offer is what I call European leave: saying good-bye without leaving. Yet the quisling parliament has already rejected that travesty three times.

I’m wracking my brain to see what options stay on the table. No-deal is off, no deal is acceptable – what remains? Exactly. Remain.

That now seems to be the likeliest outcome, but, disgusting as it is, not the worst one. What’s even worse is the irreparable constitutional damage that may well leave the country defenceless in the face of a hostile takeover by its avowed enemies.

So by all means, do argue about the small print in all those dusty volumes piled up in law libraries. Sorry I can’t join the fun.

3 thoughts on “Judicial review? No, judicial vandalism”

  1. Sounds like the Supreme Court of the USA. I did not even know the British HAD a Supreme Court. I knew they had something called Law Lords like the American Supreme Court. Judicial review as meaning voting their sentiments and not law. Welcome to the club English. Enjoy!

    1. Yes, the British got infected by John Marshall Syndrome. The right to use Urim and Thummin to divine the intent of laws and strike them down if they don’t like them. Our court is so politicized now that it’s a super legislature. My condolences to the once mighty Parliament.

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