I won’t pretend to have substantial knowledge of the intricacies of Britain’s unwritten constitution, or the workings of their judicial system that has sat uneasily beneath the doctrine of parliamentary supremacy since at least the time of Sir Edward Coke and Blackstone. One of my favorite books on my law shelf can help explain the conundrum for anyone not steeped in British law: It is Theodore Plucknett’s A Concise History of the Common Law. It is 828 pages. Of small print. Concise, you say?
This is preface for saying that notwithstanding the large gaps in my knowledge of English jurisprudence, I find the ruling out of a Scottish court that PM Boris Johnson’s step to “prorogue” Parliament was unconstitutional to be extremely fishy. You might say that a rogue judge has stopped a prorogue. I think we’ve found the real “pro” rogue.
Fortunately, John Finnis is on the job. Finnis is one of the leading British philosophers of law, the author of a classic, Natural Law and Natural Rights, and incidentally the supervisor of Neil Gorsuch’s D.Phil thesis at Oxford. Despite his advancing years (Finnis turns 80 next year), he as written a strong blast at the court ruling. (Note: link is to PDF file.)
In short, Finnis’s main charge is one that will sound all too familiar to Americans:
The Judgment was wholly unjustified by law. What it protects is not the sovereignty of Parliament, properly so called, but the practical opportunities of each House to pass Bills and scrutinise the Government – all redescribed as the “principle of Parliamentary accountability”. Those constitutionally vital opportunities, and that principle, have been protected for over 300 years, without significant mishap, by constitutional conventions which are policed politically, ultimately by the electorate. In working with the principles of Parliamentary sovereignty and political accountability, our constitutional law has always (partly under the influence of art. 9) distinguished firmly between legal rules (justiciable) and conventions(non-justiciable). The Judgment offers no plausible reason for transferring the conventions about prorogation into the domain of justiciable law. . .
Thus the Court suddenly assumes supreme responsibility for the maintenance and preservation of the pivot of the constitutional-political order. It does so without mentioning that it is replacing some main elements of a constitutional settlement that has given effect, for hundreds of years, to certain tried and tested political assessments and judgments. Those were political judgments squarely concerned with what is constitutionally necessary and sufficient to forestall and counteract abuse in the Crown’s relationship to the Houses of Parliament and to the electorate.
The whole paper is barely 20 pages long, and Finnis’s writing (unlike many academics and law professors) is lucid and easy to follow. Do check out the whole thing if you are curious. If not, just savor his final paragraph:
So the Judgment is more a mistake than a victory for fundamental principle. Its consequences will be far indeed from “one-off”, or even “exceptional”. No doubt the next Parliament might appropriately exercise its authentic law-making sovereignty to reverse the Judgment’s misuse of judicial power. But legislation on prorogation, or on the relations of Crown and Parliament more generally, or on the limits of justiciability, can do little to undo the damage done to the rule of law, and to our constitutional doctrine and constitutional settlement. That could only be undone by a change of heart, a reconsideration of what it is to exercise a truly judicial power.
I’m starting to understand why Justice Gorsuch writes such clear and direct prose in his legal opinions.