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Democracy Falters and the Court Remains

Until recently, liberal elites in Europe and America at least pretended to believe in democracy, the fundamental right of the people to choose their representatives through constitutional formalities—elections. This commitment appears to be fading. The formalities of modern government are decreasingly understood to serve the people in making their choices, but instead tend to enhance the prerogatives of government itself. Revenge has a long bipartisan history in the U.S., but recently matters seem to be getting worse. If leftists do not win an election, they now proceed indignantly to take revenge on disobedient electorates by crippling their elected governments.

In America, the Democratic Party that lost the 2016 elections at every level simply decided that the people do not have a right to the president they elected, in this case a Republican. So, partisans of the Left have since been trying everything they could think of to overturn the legitimate results of that election.

The first of these efforts centered on the not entirely sane hope that the Mueller Report would accuse President Trump of conspiracy with Russia. Now, across Russia’s Western border, another conspiracy is supposed to have taken place in Ukraine. Accordingly, the Democratic Speaker of the House of Representatives prepares to begin impeachment proceedings against the president. Thankfully, there are elections coming in 2020 that could put a stop to this, even at the cost of suspending the education of American liberals in European geography. I say thankfully not because I am confident of the results of the election—that’s up to the people—but because I am certain there will be an election.

So thank God for the Constitution, or Official Washington might simply attack elections instead of the elected. This is now happening in Britain, and it urgently demands our attention. Brexit has finally become what it was always going to be, a full constitutional crisis. This week, the Supreme Court of the United Kingdom, an institution younger than most people now alive in the UK, has suddenly declared its authority over Britain’s ancient constitution and actual political institutions.

This is a textbook example of judges hijacking politics. The UK Supreme Court was created when then-Labour PM Tony Blair passed the Constitutional Reform Act of 2005, explicitly in order to subordinate British politics, and especially its justice system, to the requirements of the European Convention on Human Rights. You might not think the UK’s leadership would make it their job to subject themselves and the people they swear to represent to foreign authorities, but you’d be wrong.

Thus, in 2009, the UK Supreme Court sprang forth like Athena from the skull of Zeus, fully-grown and armored for battle. And in 2019, it has unanimously decided that it, rather than the people or their elected representatives, will decide whether the Queen and the Government can prorogue Parliament. Twelve justices put a stop to British politics with the sole purpose of preventing elections where the people could choose their representatives.

The character of British law itself is therefore in question now, however hard it may be for the press to say so, or for people to realize this, as they’re facing a baffling, unprecedented, highly arcane institutional ruling. Previously, we had believed that the oldest constitutional regime in the world was dedicated to representative government. Now, we are told that power must be arbitrary and administrative rather than representative, and only official experts to whom the people never consented through elections must decide the most serious political questions.

Let us therefore present the issue in its clearest political form. Boris Johnson became Conservative Party Leader and Prime Minister this summer after his predecessor’s resignation. He was committed to implementing Brexit, because the British people voted for it in a referendum in 2016. But the Parliament has since decided that it will not do so and, instead, that European unelected officials should decide Britain’s fate against the will of the majority.

The Parliament faces an easy choice, if it understands itself as bound by the consent of the governed. If it does not trust PM Johnson, it can easily hold a vote of no confidence, since he no longer has a majority in the House of Commons. That would lead to elections and the people would choose which party they want to run the government. This is what PM Johnson wants, so he asked the Queen to prorogue Parliament and have a new election.

Prorogation is used with some frequency in British politics, but rarely for such an extended time. The truth remains that rather than some extreme measure, is a simple and recognized procedure used to suspend Parliament. The reasoning of the PM is sound and democratic. If the Parliament refuses to implement the Government’s policy, then politicians must turn to the people for their choice. Since Parliament refuses to turn to the people, the Prime Minister may have to do it for them and save democracy.

Parliament cannot run the country—only a Prime Minister that commands a majority of the House of Commons according to the will of the people. That is the constitutional system that the UK’s citizens look to every time they vote in an election, as happened most recently in 2017, when the winners of the election, the Conservatives, formed a majority coalition to implement Brexit.

The majority in the Commons has since decided to reject the political principles on which each of its currently sitting members has been elected—but not to relinquish those seats. They relinquish democracy instead. Since elections are partisan, this means now that the Conservatives who formed the Government after the elections of 2017 are the minority and the majority coalition now formed around the losers of that election, Labour, refuse to hold a new election.

This switch may seem a mere matter of chance, but it is not—it is fateful. That the losers of an election hijack the Parliament in order to deny the winners the Government and in order to prevent another election is the pluperfect image of elite vision of liberalism. But it would be incomplete without a Supreme Court created from paper in order to subordinate the country to the EU deciding that the Queen and Prime Minister acted illegally—and instead the Parliament should ask the EU’s unelected leaders to decide Britain’s fate.

This is a crisis, but a crisis is a moment of clarity. We do not know whether PM Johnson can stand up for the people and for the Queen and for the ancient constitution. We do now know, however, that the Labour-led majority in the House refuses to have elections and refuses to have a British Government decide Britain’s fate in relation to the EU according to a popular vote. We also know that the UK Supreme Court has put itself at the head of this attack on democracy.

It is up to the people of Britain to reassert their democratic right to elect their representatives and thus consent to government. Or perhaps they have since lost the passion for freedom and would enjoy the tyranny of their newest master, the UK Supreme Court.

We must look to Britain and consider things carefully, since we are facing a similar attack on democracy in America. Our own liberal elites are trying to destroy the results of democratic elections through unelected officials. But happily our Founders were wise and we have a Constitution which is out of the hands of corrupt elites. We will decide in 2020 whether democracy means elections or, on the other hand, obedience to experts, bureaucrats, and life-long political operatives.

We will decide whether governments are established among men to secure their inalienable rights, deriving their just powers from the consent of the governed, in the words of the Declaration of Independence. American protections against the elimination of politics are stronger, but the U.S. government can also be crippled fairly easily, as the last three years have shown. But we should be glad of the opportunity to affirm the connection between democratic equality and the freedom to govern ourselves.

Reader Discussion

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on September 26, 2019 at 10:33:55 am

This seemed to me about the worst piece of commentary which I have seen about the current situation in the UK, which is saying something.
Briefly (a full response would take a great deal of space):
(a) The British political system is a parliamentary democracy, not a direct democracy. This means that a referendum is problematic, in the sense that it can open up a situation – as in the case of the Brexit referendum – when a measure is passed of which no-one is the clear owner (in terms of having responsibility for framing the relevant legislation, and taking responsibility for the consequences).
(b) The Brexit referendum was particularly problematic in this context, in the sense that, while it passed, it was not clear what its implications were. Mrs May interpreted it in one way, and negotiated with the EU on that basis. The result was something that some people were not happy with, so that legislation based on her interpretation of the referendum could not command a majority in Parliament. Other agreements might have been possible, had Mrs May negotiated on a different basis. Some people – e.g. some of the supporters of the Brexit Party – take the view that Britain should simply leave the EU without an agreement. But it is not clear that the referendum result implies that this should happen; and it has been argued that the results of doing this would be highly problematic.
(c) Indeed, one of the things that has become clearer since the referendum took place, are the problems that would be posed by any form of Brexit, because of the close degree of integration that has taken place between the economy of the UK and that of the EU, and also because of the Belfast Agreement, which has provided a workable practical solution to what were otherwise intractable problems relating to Northern Ireland. Mrs May’s agreement was about the least disruptive form of brexit which it would appear was available. The problem about it, was that it left the UK in some ways so close to the EU that it was not really clear what the point of exit would be, and in other respects it would leave the UK considerably disadvantaged, as compared to the situation if it had remained in the EU.
(d) The current Prime Minister wishes to renegotiate the agreement with the EU, notably so as to avoid the ‘backstop’ arrangement in Ireland that was part of Mrs May’s agreement. It is not clear that he has any concrete solution to the problems that the backstop was designed to resolve, so it is not clear that a new agreement is possible, let alone in the time span to which he has committed himself (exit by the end of October 2019). This would leave Britain in the default position that it would exit without an agreement; something that has been argued – it seems to me very powerfully – would be devastating in its consequences, and which would face everyone with major problems in Northern Ireland. The Prime Minister seems to see himself as engaged in a game of chicken with the EU, wishing to use the threat of an exit without an agreement as a bargaining chip. But as this would be most harmful to the UK, and as the key problem in the negotiations is not, as far as I can see, stubbornness on the part of the EU, but that his own proposals (such as they are) don’t resolve the problems that he would need to address if the Irish backstop were dropped, the result of this is likely to be exit without an agreement.
(e) For this, the Prime Minister does not have a Parliamentary majority. And because the majority of those in Parliament think that exit without an agreement would be a disaster, and also judge – surely, correctly – that it is not required by the result of the referendum, they have taken what steps they can to try to stop its occurring. It is likely that the Prime Minister will take what steps he can to avoid this, and it is in this context – which would, in effect, have placed the Prime Minister beyond scrutiny by Parliament – that objection was taken to the Prime Minister’s extended prorogation of Parliament.
(f) No-one contests that prorogation cannot legitimately take place in preparation for the Queen’s Speech; the problem was its extent and the role that such a prorogation would have in respect of Parliament’s key role in the critical scrutiny of the activities of the Prime Minister and government in this particular period.
(g) The Supreme Court in Britain took over the function of being the highest common law court of appeal from the House of Lords. The role that it played in this particular case – in judging an issue relating to the legitimate extent of Royal Prerogative – was in line with its traditional functions in this area, as the judgement itself, which is well worth reading, makes clear. See https://www.supremecourt.uk/cases/docs/uksc-2019-0192-judgment.pdf
(h) The issue about democracy and elites, which the article raises, seems to me badly put. The British system of democracy is a Parliamentary system, which operates within a constitution which is in part a matter of tradition and convention, in part a matter of law. The Brexit referendum posed problems for this, in part because it underdetermined the appropriate course of action which should follow from its being passed; in part because of the specific actions which the Prime Minister has chosen to take. His decision to insist on Brexit by a specific date was, essentially, arbitrary. His decision to remove membership of the Conservative Party from Conservative MPs who voted against him, was quite extraordinary. While his prorogation of Parliament, and the indications that were given that he would do everything that he could to force through Brexit by the end of October regardless of the law, is, to say the least, not something that one would expect of a Conservative Prime Minister. It is he and his supporters who are the subverters of Parliamentary democracy in the UK; it is surprising to find sympathy being expressed for him in a forum such as this.
(i) In my personal view, all this serves to indicate that referenda should be dropped completely from the British system of government. As to Brexit, one is faced – it seems to me – with a difficult situation. For while the EU has considerable faults, everything that has so far been offered as a way of interpreting Brexit seems to me to range from the considerably worse than EU membership to the potentially catastrophic. If they share my judgement about this, MPs must be torn between the undertakings which were given to those participating in the referendum, and their judgement as to what is likely to be in the interests of their constituents. (It is misleading to put the issues here in terms of the ideas of a ‘liberal elite’: the issues are predominantly technical economic and legal ones, and the key division is really on the basis of those who appreciate what these are, and those who do not. While a majority wished to leave the EU, it is not clear that they had any conception of what should be done in the face of these issues. I am not suggesting that those who voted the other way were well-informed. But, in broad terms, MPs and their advisers are well-informed, which is why it seems to me that Parliamentary democracy is to be preferred to any form of direct democracy. Clearly, this over-simplifies, but it seems to me that those who are well-informed and argue for Brexit, typically take an over-optimistic view of what would be available to the UK by way of trade deals with other countries.)
(j) As to what should be done about Brexit, I was not myself eligible to vote when the referendum took place. But I think that the issue would be best settled by way of a general election, in which political parties went to the polls clearly identifying what policies they would follow if elected. Should they do so, I would vote for the SNP in Scotland (where I live), or the Liberal Democrats in England, who are each opposed to Brexit. If we have to have a form of Brexit, Mrs May’s version – with is fully compatible with the referendum – is clearly to be preferred to leaving without an agreement, although it seems to me for a whole range of reasons much worse than remaining in the EU. It is also worth reminding those who favour Brexit, that this agreement (or non-agreement) would only be the beginning of negotiations with the EU about trade issues.

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Jeremy Shearmur
on September 26, 2019 at 11:31:28 am

A nice exposition. But I would remind you that here in the USA, statutes, referenda and even judicial decisions are routinely "underdetermined." This does not prevent courts and administrative agencies from performing the determinations that the authorizing law did not. For example, when Brown v Board of Education was decided, its mandate was underdetermined. That did not prevent district courts from later making all of the determinations they thought necessary to implement that mandate. They grew impatient with the failure of the states to implement the mandate, and the key thing was that the mandate must be carried out, by some way or another. "Subversion" of the Constitution was a tertiary consideration. Ours is a written constitution that presumably makes subversion more difficult than in the UK, say, but our history suggests otherwise. Of course, in earlier eras, the courts were accused of subverting the Constitution by refusing to permit the government to carry out the New Deal mandates.

Brexit has lingered and festered for years now. Nothing is required by the referendum except that it be effected. One suspects that, had the referendum been on a different topic--say, a referendum that women have full and complete equality in all things--and had Parliament dithered and procrastinated over the precise way to go about it, and a Labour PM who promised aggressive action was installed and proceeded to take said aggressive action, including a prorogation of Parliament, the UK Supreme Court would have managed to find this entirely within the constitutional powers of the PM. That, at least, is how such things tend to play out here.

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QET
on September 26, 2019 at 11:52:50 am

Gosh, Jeremy Shearmur, it seems like Titus Techera may have missed a nuance or two about the British democratic system.

Good thing he has a firm grasp on the US system--specifically the idea that only liberals would ever raise frivolous challenges to the legitimacy of a duly-elected president or impede that president's administration.

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nobody.really
on September 26, 2019 at 12:00:58 pm

Thanks for your most useful comment.

You are, of course, right. But there is an important difference here between the actions of the courts and the actions of politicians.

In the context of common law, what is to be made of a specific case, or what is to be done in the event that there is a clash between different rules, may be fairly clear on the basis of precedent, or may be (less) clear, on the basis of the intuitive judgements of experienced judges who draw on their knowledge of the operation of the legal system. Even here, however - as both Leoni and Hayek have argued - precedent may generate problematic courses of action, and those involved may indicate that one needs to go back to the legislature to sort things out. In the case of US Constitutional Law, things are less clear-cut: I need hardly remind you of the controversies about this, and of those who have argued that, in the event of issues not being clear-cut, they should be pushed back to Congress, rather than resolved on the basis of the values of the judges on the Supreme Court.

In the case of Brexit, things are, I think, more problematic, for it is politicians rather than judges who were faced with the task of interpreting what the referendum result meant. And here, the problem was that different people were championing a range of different views, any of which would have been compatible with the text of the referendum. Any of these could have been the basis of negotiation with the EU, and would have, presumably, led to different outcomes. A further background problem, was that what many people had seemed to have hoped for was not, in fact, something that they would actually be able to get the EU to agree to. I am no fan of the EU, but part of the problem, here, was that the UK had traditionally favoured something that was more like a free trade region, but this was not what the EU went for, and there was no way in which the elements of free trade with the EU (which are very valuable to the UK, not least because they include some services), would be given to the UK without it also subscribing to other things which it did not favour. That this was the case is pretty clear, if one reads the history of UK/EU negotiations. But many of those who favoured Brexit did not seem willing to accept that this was the case.

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Jeremy Shearmur
on September 26, 2019 at 13:51:57 pm

No, but ONLY liberals would read into the congressional Record a PARODY of their opponents conversation and present it as if it were real.

Now that is a bunch of SCHIFF!!!!!!!

Check out the Chief SCHIFFhead of the House Committee emulating some old Saturday Night Live skit.

Ha, now that is some serious SCHIFF!!!!!

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gabe
on September 26, 2019 at 14:56:42 pm

Odd, one wonders what Mr Shearmur thinks of the Irish court's decision that Brexit without the backstop is neither a violation of the Irish Treaty nor would it result in a "diminution" of the rights of the Irish. The ploy that the EU and the Remainers have inserted into the debate to forestall Brexit.

Also, it is NOT at all clear the Brexit would result in dire economic consequences for the UK. As only one example, a major American financial house which originally predicted "death and doom" for the Brits should Brexit come to pass has now been seen to begin a $1 BILLION investment in the UK financial sector.

Nor should Mr Shearmur overlook a speech recently given in the German Bundestag in which the German opposition Party leader reminds Merkel that the UK IS Germany's principal trading partner, that the german auto industry is dependent for the major share of their trade with the UK AND that it is Germany that will suffer should a No-Deal Brexit be effected.

Perhaps, Mr Shearmur would consider applying some of the same analysis to the EU? Perhaps, it may very well be that the EU will suffer and that, along with their apparent and oft pronounced disdain for "nation states", the need for continued tax and trade benefits FROM the UK is what is motivating the Brusselcrats.

Lastly, let us hope the Brits do not succumb to the presumptive power grab of the Black Robes (albeit with powdered wigs) that has utterly stultified the American Judicial and political system.

Your descendants in democracy, i.e., We Yanks, are hoping that you once again be a beacon of self-government and cast off, as did we many years ago, a tyrant who imposed all manner of unwanted obligations upon the citizenry.

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gabe
on September 26, 2019 at 15:00:46 pm

oops forgot the link to the SCHIFF I was talking about:

https://www.powerlineblog.com/archives/2019/09/essence-of-schiff.php

Gawd, could Schiff be auditioning for role in a new Monthy Python movie?

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gabe
on September 26, 2019 at 15:05:21 pm

And how neglectful of me to fail to mention that The SCHIFF head of the House Committee is, as always, aided and abetted by WAPO AND NYTimes who (ONCE AGAIN) selectively edit the transcript to evidence that which is demonstrably FALSE when one reads the unedited transcript.

https://thefederalist.com/2019/09/26/new-york-times-washington-post-front-pages-deceptively-slice-ukraine-call-transcript-to-implicate-trump/

Oh yeah, nobody really believes this SCHIFF!

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gabe
on September 26, 2019 at 15:07:08 pm

I was about to pen a reply debunking this ridiculous article then noticed Jeremy Shearmur had done an already excellent job.

The OP brings an entirely unhelpful combination of bias and ignorance to a topic that needs no more of either. Thank you Jeremy.

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Hilary
on September 26, 2019 at 15:35:48 pm

WAPO AND NYTimes who (ONCE AGAIN) selectively edit the transcript to evidence that which is demonstrably FALSE when one reads the unedited transcript.

Since you make this claim, would you do us the kindness of quoting the passages from WAPO and the NYT that you find to be demonstrably false?

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nobody.really
on September 26, 2019 at 20:17:52 pm

Look it up yourself and DO the work instead of your usual practice of insinuating that I am making in up!

One does grow weary of your penchant for posturing as the "data driven" commenter.

then again, perhaps, you are like Sleepy Joe Biden, you "prefer" TRUTH to facts, such as truth appears to be whatever you and the rest of the Proggies determine it to be.

Now back to my glass of rather fine WallaWalla Valley Merlot.

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gabe
on September 26, 2019 at 20:40:12 pm

gabe: WAPO AND NYTimes who (ONCE AGAIN) selectively edit the transcript to evidence that which is demonstrably FALSE when one reads the unedited transcript.

nobody.really: Since you make this claim, would you do us the kindness of quoting the passages from WAPO and the NYT that you find to be demonstrably false?

gabe: Look it up yourself and DO the work instead of your usual practice of insinuating that I am making in up!

Wow, look at that: I make an argument, and I support it WITH ACTUAL QUOTES.

gabe makes an argument, and supports it with ABSOLUTELY NOTHING. When gabe makes claims that something is "demonstrably FALSE," the only thing he is prepared to demonstrate is that he doesn't know what "demonstrable" means.

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nobody.really
on September 27, 2019 at 06:48:37 am

Thanks very much for your comment. You have raised a large number of issues, each of which would require extensive discussion. I can, here, only be brief. Let me take your points in turn.
(a) The issue about the Irish border is a material one not a legal one in the sense to which you have referred. The problem is that, if there is Brexit without an agreement like Mrs May’s (which would have kept arrangements in the UK aligned to those in the EU until detailed negotiations about ongoing trade etc arrangements had resolved all the issues), one would be faced, on the Northern Ireland border, with a border between the EU and a UK which would be operating under different arrangements. The problems here are complex, but they are broadly threefold:
(i) Agricultural-related industries in Ireland are highly integrated across the border, but if one is dealing with an EU border, the EU is committed to imposing tariffs on agricultural products, and also requires that stuff that crosses its border meets its health etc standards.
(ii) There are also more general issues about trade, relating to tariffs, controls relating to product standards, and also a system of ‘value added tax’: if there is not alignment here (as in respect of (i)), it is not clear that one can avoid the re-introduction of a hard border. (The UK government has regularly indicated that it would offer an alternative solution to these problems; but so far, they have not come up with anything that would work.)
(iii) A key difficulty here then relates to the problems of Northern Ireland itself. At the point where Ireland became independent of the UK, Northern Ireland was carved out of it, as an area with a Protestant population which identified strongly with the UK. (The background to all this is a complex story which I will spare readers here; the result was a polarization between the populations, in which religious differences served to demarcate divisions between different communities, with the Protestants using their political domination to do a lot of things which were unfair to the Catholics.) The Catholic population was unhappy about all this, and favoured unification with the South. But the problem was that both sides of Northern Irish politics inherited traditions of using violence. There has also, in the border areas, been a long tradition of smuggling, while the borders are very complicated. The problem of not having Northern Ireland aligned to the South, is that it is an open invitation to increased smuggling, while physical borders would be a target for violence.
It is all this, which everyone wishes to avoid, which is one of the reasons why many people are so concerned about the idea of Brexit without an agreement, and to which it is not clear that the Prime Minister is offering any alternative solution.
(b) The implications for the financial sector in the UK will be interesting. The free trade element in the EU arrangements is, broadly speaking, a matter of agriculture and manufactured goods. The UK pressed also for free trade in services, and was – on this score – able to do much better than has, as far as I know, been managed in respect of other free trade agreements. This has been a major benefit for the UK, as its financial and insurance services are highly sophisticated. It has, as a result, been able to pick up a great deal of lucrative business in the EU. It is not clear how this will continue: financial institutions engaged in this kind of business are typically having to set up offices or operations within the EU, while financial centres elsewhere in the EU will be keen to attract this business, and may, over time, make matters difficult for the UK.

I cannot comment on the specific case of US investment to which you refer, as you didn’t provide a reference. But it is striking that UK membership of the EU (and the institutions which prefigured it) is something that the US government has promoted for many years, while the UK looked attractive to commercial investors from overseas as an English-speaking country which offered access to the EU. (This has, for example, been significant for the Japanese.) It will be interesting to see how this develops.

(c) It is perfectly true that Germany exports a lot of cars to the UK, and that the sale of these will be affected if there are tariffs. The UK also participates in many high-tech industries, which operate across borders on a ‘just in time’ basis. (These typically produce significant benefits for those involved in the UK.) The argument to which you refer was widely canvassed among those in the UK who favoured Brexit. But the problem was that, in the end, the German manufacturers made it clear that, while this would hit them economically, their preference was for the maintenance of the single market in the EU. it was simply not the case that this produced the kind of political pressures on the EU that some people in Britain had been hoping for.
(d) The EU will certainly suffer from consequences which will follow from Brexit, and especially from a hard Brexit. On the face of it, there will be bad commercial consequences for everyone. There will also be losses in terms of various forms of cooperation. The UK is a net contributor to the EU budget, although it – especially some of its more remote parts – does also benefit from a range of EU programs. In broad terms, however, the EU was set up so that there would be some financial transfers from the richer to the poorer members.
More a matter of concern in the UK, have been the federalist tendencies of the EU. These, however, have been rendered in some ways more difficult to pursue, as a consequence of the expansion of the EU’s membership, including several countries which are fiercely concerned for their own independence. If the UK remained in the EU, it would seem to me likely that alliances with these countries could enable a feature of British policy which it has pursued over many years to develop, which envisaged a division between those countries which wished to have a high degree of integration, and a periphery which was not involved in this. At the same time, the policies of the current US President in terms of moving away from multilateral agreements and organizations, make certain elements of federalism more likely inn Europe – e.g. a tighter integration of foreign policy, and in the longer-term, the development of Europe-wide armed forces.
One other issue to bear in mind, is that if one is involved in free trade agreements between different countries, there needs to be some dispute-resolution mechanism which stands independently of the judicial system of any of the individual countries involved. The EU and its legal and administrative system currently play such a role, and gripes about this as an issue of principle, seem to me mistaken. It is also the case that each country within the EU (and sometimes parts of it) has to agree to, for example, new free trade agreements, which means that its distinctive interests can to a degree be protected. (Of course, a country might find that if it enters into a trading agreement with a much larger country, it simply has to accept their law; one worry about a future UK/US trade agreement is that the UK might find that it has less of a say with regard to regulations, than it had as a member of the EU!)
(e) I think that you have got the wrong end of the stick with regard to the role of the courts in the UK. In the recent case, the UK Supreme Court was simply exercising its powers under common law, and one on the face of it needs some body which will adjudicate whether or not powers that a government is claiming on a prerogative basis are, in fact, claimed legitimately. As the Wikipedia article on prerogative in the UK notes, with a reference to a specialist source (https://en.wikipedia.org/wiki/Royal_prerogative_in_the_United_Kingdom): ‘whether a particular type of prerogative power exists is a matter of common law to be decided by the courts as the final arbiter’. (Personally, I’d have thought that an important goal for those concerned with liberty should be the abolition of prerogative!)
(f) I don’t think that the analogy with the U.S. is a particularly useful one in relation to Brexit. I’d certainly prefer a system in which there was free trade in goods and services on an international basis, with a fair-minded international court setting the rules and adjudicating on issues on which there was a dispute. However, it is not clear that this is something to which we can realistically aspire under current conditions. As things stand, the degree of free trade of goods and to a limited degree of services in the EU, together with the trade agreements that it has been able to negotiate with other countries, looks to me about as good as we can get.

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Jeremy Shearmur
on September 27, 2019 at 08:19:50 am

[…] Our British cousins are now in a full-fledged constitutional crisis. Their Supreme Court has hijacked all power in the realm, from the people, the Parliament, the Prime Minister, and even the Queen.  As long as this lasts, the United Kingdom cannot really be considered a democracy, it is an oligarchy of 12 people. Maybe it would be more honest to call it simply the Politburo. This, of course, is the fact of finding the prorogation of Parliament to be unconstitutional, illegal, unlawful, or maybe fattening. Who knows, they simply made it up out of the whole cloth without any justification in law whatsoever. It is an ancient right of the government acting with the crown. I’m no lawyer, nor am I an expert on the British constitution, so, although that much is obvious, let’s let someone who knows a lot more tell you about it. That would be Titus Techera, writing in Law and Liberty. […]

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Brexit and the End of Democracy | nebraskaenergyobserver
on September 27, 2019 at 09:34:45 am

nobody:

That was actually good, re: "demonstrably"

I luvv'd it!

Seriously though, I am simply not as long winded as are you. I don;t think folks want to wade through oodles of verbiage
AND I have observed that folks tend to retain more when they actually look something up themselves.
Call me an Old Fashioned Schoolmarm (at least the ones that I had in grade school).

seeya

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gabe
on September 28, 2019 at 16:25:45 pm

The Supreme Court decision was not on Brexit. Brexit simply happens to be the background which gave rise to the issue on which the court was asked to pronounce. The court pointed this out in the judgement which was read out in open court.

The court decided on two separate but related questions. The first question was whether it is incumbent on the Executive to tell the truth in asking the Monarch to prorogue parliament. A second question was whether the above matter was justiciable.

If the answer to the second question is NO, then parliament can be made redundant by the executive. If parliament is to be sovereign, the court had no choice but to answer YES. That answer by implication required examination of the issue of probity raised in the first question.

The first question goes to the heart of probity in governance, at least in the UK. Here it is a settled view that lying to parliament by a minister, including the Prime Minister, is a resignation matter if caught. The court has extended that view to apply to communication between the executive and the Monarch. In view of the lack of candor by the executive in advising the Queen, it appears that the executive accepted by implication that truth would not secure prorogation. The Prime Minister by his own action appeared to accept that a valid reason needed to be given for advising the Queen to shut down parliament for five weeks. Johnson government had told the Queen that the five week prorogation was necessary to prepare for the Queen's speech. A short prorogation has hitherto been the norm. A couple of similarly short prorogations would have kept to precedence about parliament not sitting during party conferences. Communication between the Prime Minister and his praetorian guard, made available to the court, indicated that the reason for asking the Queen to prorogue was to silence parliament leading up to the period of departure from the EU. The court simply held that in light of these disclosures, the prorogation was void.

The judiciary in the UK is more detached from party politics than the judiciary in the US. Hence the tussle over appointment of judges. Someone steeped in the American system may be forgiven for looking for explicit political motive about Brexit in the judgement of the Supreme Court in London.

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S P Chakravarty
on September 29, 2019 at 09:35:12 am

SP:

thanks for the analysis.
The issue of the *lie* puts the issue in a somewhat different light.

I will say this however. This was a rather unique lie in that someone, such as myself, sitting some 6.000 miles away, could share the understanding that the purpose of the prorogue WAS to "silence" Parliament and also to prevent the Speaker from once again going rogue and "legislating" during what the Brits quaintly call "
government time" as the Speaker is NOT the government. Apparently, this was a pretty OPEN lie.

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gabe

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