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We are living through a rolling constitutional crisis – balance must be restored between our courts and Parliament

4 min read

The careful balance between courts, Parliament and Acts of Parliament is being badly shaken by recent events, and needs consideration, writes John Redwood MP

The Supreme Court was a formed under Tony Blair as part of a complex and expensive reform of the role of Lord Chancellor and the Law Lords. The court became part of a network of so-called ‘supreme courts’ in the EU, united by one central feature that none of them were supreme but all had to accept the ultimate authority of the European Court of Justice in many matters governed by EU law and the treaty. Its recent judgement over the issue of prorogation of Parliament has catapulted it into political debate. The government accepted the right of the court to do as it did but disagreed strongly with the judgement and reasoning behind it. The government needs to uphold the rule of law and accepted the results of the judgement. After a hectic period of wider constitutional change it is likely now the Conservative Party will consider what amendments or clarifications are needed to our constitution through primary legislation to place in its manifesto. At issue are the Fixed-Term Parliaments Act, the scope of the courts and the function of legislation. Other parties too may be planning various but different constitutional amendments should they win an election.

The Fixed-Term Parliaments Act has been found wanting. It has failed to ensure five-year gaps between elections, whilst frustrating the wish of the government to hold an election to resolve an impasse in Parliament. As a result we are living through a rolling constitutional crisis with no effective government with a majority to enforce its will.

The biggest constitutional debate we need to have is the relationship between statute law, common law and royal or government prerogative powers. The prorogation judgement decided to take control of the reasons and circumstances surrounding prorogation out of the traditional hands of the prime minister advising the Queen into the rules laid down by the court. At the same time Parliament decided to pass an act that seeks to control the future conduct and political judgement of the Prime Minister in a quite unprecedented way. As a result a government without a majority is left drifting, unable to govern, in a Parliament which will not allow a general election and cannot offer a stable majority government to take over.

It is normal to say that whilst statute law trumps common law – and can always be used to guide or direct judges – it is also the case the statute law needs to observe certain proprieties. It needs to be clear so people can obey it. It needs to be fair so it commands general consent. It needs to be enforceable. Everyone agrees there is no point in Parliament passing the Sunny Sundays Act requiring government to ensure it is always rain free at the weekend, popular though that might be. It is clearly outside the power of government.

So what is fair and enforceable when it comes to the decision of prime ministers? Surely all would agree the prime minister could not be made to stand outside in the rain for specified periods? So should he be forced to make speeches or write letters against measures he had proposed in his manifesto, even if his opponents had temporarily got a majority in the Commons to express their dislike of him? The accepted way for Parliament to deal with a PM it does not like is to pass a motion of No Confidence to take his job away.

The careful balance between courts, Parliament and Acts of Parliament is being badly shaken by recent events. The currency of an Act of Parliament has to be kept to a high standard. The courts should be supreme in judging individual cases and ensuring all are beneath the law. They also need to show wisdom when it comes to amending the law where they interact with people and Parliament. Above all they need to know when something is an act of politics and not a fair and enforceable law.

Sir John Redwood is Conservative MP for Wokingham

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