Catherine Barnard, a Professor of EU Law, and Chris Bickerton, a political scientist, dive into the Supreme Court's critical prorogation case. They discuss the tension between judicial review and political power, exploring why courts are cautious about intervening in political matters. The implications for Brexit and parliamentary sovereignty are dissected, including whether the UK's constitution is shifting towards a more European model. The conversation raises questions about potential second referendums and the political dynamics affecting Brexit negotiations.
The Supreme Court's ruling on prorogation could redefine the balance of power between the judiciary and Parliament in the UK.
Contrasting judicial perspectives suggest a potential shift towards increased judicial oversight over executive actions threatening parliamentary democracy.
The podcast highlights how the current political instability challenges traditional checks on governmental power, making courts a key accountability mechanism.
Deep dives
Understanding the Supreme Court's Role in Prorogation
The Supreme Court case on the prorogation of Parliament is a significant examination of constitutional law, with a focus on the justiciability of the government’s actions. There are contrasting views on whether the court should intervene in what is traditionally seen as a political matter. The High Court ruled that government decisions of this nature are not justiciable, while the Scottish Court argued that unlimited power should not exist without judicial review, especially when such actions threaten parliamentary democracy. The outcome of this case could define new boundaries for governmental powers and judicial oversight in the UK.
The Political Implications of Prorogation
The arguments presented revolve around the consequences of prorogation, especially concerning the government's justification for it in relation to parliamentary norms. Central to the debate is whether the Prime Minister's decision to prorogue for five weeks, ostensibly for a Queen's speech and party conference season, can be justified. Critics argue that such actions undermine parliamentary democracy and indicate a troubling trend toward executive overreach. The case also highlights the tensions between political maneuvering and constitutional principles, raising questions about the integrity of the political process.
Judicial Overreach vs. Political Accountability
The discussion emphasizes the constitutional balance between judicial intervention and political accountability, critiquing the role of the courts in political matters. If the Supreme Court declares the prorogation unlawful, it could signify a shift towards judicial supremacy over the political domain, traditionally governed by Parliament. On the other hand, leaving unchecked executive power poses threats to democratic oversight. This creates a delicate situation where the courts must navigate their authority without overstepping their constitutional bounds while also responding to a politically unstable environment.
Future of Constitutional Law in a Post-Brexit Context
The implications of this case extend beyond the immediate question of prorogation; they contribute to broader discussions about the UK’s constitutional framework in a post-Brexit landscape. The erosion of parliamentary sovereignty during EU membership and the subsequent reassertion of national law raise essential questions regarding legal principles in the UK. With the potential for recurring legal challenges related to executive power, the court's role may evolve toward a more pronounced stance in constitutional matters. This evolution could reshape the relationship between the judiciary and Parliament, marking a new phase in UK governance.
Political Dynamics and Legislative Control
The podcast reveals how the current political dynamics have significantly impacted Parliament's ability to combat executive overreach. With a fragmented party system and a government lacking confidence in the House of Commons, the traditional checks on executive power have been weakened. This situation has forced the courts to become an alternative mechanism for holding the government accountable, as Parliament grapples with internal divisions. The interplay between political strategy and legal recourse could lead to a new set of challenges for both lawmakers and judges in navigating the UK's flawed political landscape.
In the middle of the epic prorogation battle at the Supreme Court, we ask what's at stake: for the government, for Brexit, for the constitution and for democracy. Is this a case of legal precedent, common law practice or higher constitutional principle? Is the UK constitution becoming more European in the act of leaving the EU? And what are the things lawyers on neither side can say? Plus we ask how Jo Swinson's case for revoking article 50 is going and we discuss whether we could really have a 2nd referendum without another general election. A packed episode! With Catherine Barnard, Helen Thompson and Chris Bickerton.
The prorogation case has reached the Supreme Court.
Traditionally the courts are reluctant to second guess political decisions.
The high courts of England and Wales ruled that the case wasn’t justiciable. The Scottish court took a different line.
This case is really looking under the bonnet of the constitution.
If there is no judicial control, the right to prorogue could be abused—this could trouble the courts.
But according to the UK constitution, the recourse to the abuse of power is supposed to be political rather than legal.
The current executive is a constitutional zombie: it doesn’t have the support of Parliament.
How does the court see its role?
What Boris did may be outrageous, but it’s not clear what he gained by doing it. He squeezed options but he didn’t wipe them out.
Maybe they just did it to be provocative ahead of a general election. But neither side can say that.
Who are the justices on the Supreme Court?
Most of these people have worked their way up the judicial hierarchy.
This is only the second time that all 11 are sitting. They know this case is a big deal.
The big question is legitimacy.
Common law has been seen as a central part of the UK’s constitutional history, and common law ultimately is meant to rest on an appeal to experience.
What happens if it is used to assert an abstract principle?
Across the board, politicians are no longer abiding by conventions.
If Parliament were functioning properly, it would replace the executive.
Parliament chose to legislate against no deal instead of calling for a general election.
The Fixed-Term Parliaments act has been a game changer.
