Almost every word of criticism of the judgment of the Supreme Court this week has been, frankly, barmy. Headline after headline has cast doubt on the legitimacy of the court, as it stepped in to reverse the prorogation of parliament for a record-breaking five weeks.
Most of the adverse comment has come from those with no legal training at all, let alone years of practice in the courts of England and Wales. I have no problem at all with that – everyone, as the cliché goes, is entitled to her opinion.
But opinion about the operation of the law is rather less valuable when emanating from the mouths and keyboards of those with no real understanding of how our legal system works. I have a number of opinions on good medical practice, on climate change, on what is wrong with our transport system. I sometimes express them in public and via social media. But unlike some commentators, I would hesitate to challenge a real expert, on the fundamentals of her specialist subject, informed by years of training and decades of real world experience.
My first day of law school was 30 years ago, almost to the day; the first step on a journey of legal education, training and practice in the courts, which took me in 2013 to Westminster Hall and my appointment as ‘one of Her Majesty’s Counsel, learned in the law’ – a QC. Hundreds of hours of study, dozens of exams, countless mock trials and moots, those first faltering steps into the courtroom and, eventually, the chance to stand up before the Lord Chief Justice of England (several of them in fact) and argue points of law, rooted in the abstract intellectual art form that is the Common Law of England.
All very enlightening of course but actually it was right back at the beginning of my career, probably in the first week or so at the School of Law at Manchester University in October 1989, when I learned why the Supreme Court (a more recent invention) was right about prorogation. And why all the commentators, declaring war on the courts and parliament, are wrong.
The first course taken then (and probably now) by any undergraduate law student is called, with elegant simplicity, ‘Introduction to the English Legal System’. Somewhere early on, possibly the first page of the textbook, I learned that sovereign power in the United Kingdom derives from a single source: the Queen-in-Parliament. Not the prime minister, the cabinet, the government and not judges sitting in court.
Parliament can make and unmake any law. It cannot bind itself. The Queen gives her assent to those statutes which parliament chooses to pass, including the constitutionally unexceptional ‘Benn Act’, which prohibits a no-deal Brexit. Parliament could pass a statute revoking all of our arrangements with the European Union, including our membership itself, with no possible interference from the courts. There would, of course, be a political, economic and diplomatic price to pay. But contrary to the ‘loss of sovereignty’ argument, touted incessantly by some Brexiteers, parliament has not lost an ounce of its supreme authority over the law of the land.
The death penalty? Parliament could reintroduce it tomorrow, wilfully pulling us out of the European Convention on Human Rights and revoking the Human Rights Act along the way. Immigration? Stop it altogether. Close the ports and airports to incoming traffic. Parliament has the power to do so – always has and (I expect) always will. Truly awesome and ultimate power, wielded by 650 men and women, many – it has to be said – of very average ability and often of limited experience.
What then of the prime minister, the head of our government? How does he fit into the hierarchy? The short answer, which explains everything that happened in the Supreme Court this week, is that he derives all of his power from his ability to command a majority in the Commons. If he can do so, particularly if that majority is large and loyal, he (or she) can become the lightning rod for parliamentary sovereignty, directing that power to make laws at will and to dictate the state of our society and its place in the world.
But a prime minister with no majority is like an emperor with no clothes. He may ride the streets, or make speeches at the United Nations, acting for all the world as if he is a man of great substance and influence. But in reality he is a man of straw, no more able to control the flow of events than the driver of his government limousine or, for that matter, the Downing Street cat.
And so we come to the moment when this prime minister, this naked emperor, decided to prorogue parliament, at the most critical period in the life of our nation since the second world war. The emperor’s minions were sent to see Her Majesty, with a piece of paper which has since been declared blank by the courts. Rees-Mogg, headed to Balmoral, clad only with an insufferable grin and the chutzpah of the constitutional con man that he is. The Queen I am sure was polite, although perhaps a little curt, as she signed that now blank piece of paper – aka Order in Council – in what turned out to be disappearing ink.
The eleven sombre justices of the Supreme Court were the children in the British crowd, shouting what all others deep down really knew, but many overlooked, for reasons of self-interest or political expediency, “Boris has got no clothes!”. And so he didn’t and so he will not, until he can command a majority of votes in the Mother of Parliaments, within whose chamber of commoners, the nation’s trusty suit of armour, parliamentary sovereignty, resides.