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09/25/2019

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J. Bogart

"The Supreme Court is basically saying that parliament is sovereign because, and as long as, the executive is willing to respect the opinions of the high court; and absent a willingness on the part of the executive to act in defiance of Parliament on the expressed will of The People, who are, it seems, simultaneously constituted by the result of the referendum. It strikes me that this combination of commitments makes parliamentary sovereignty fragile." This is puzzling -- are these conditions supposed to be new? Don't they hold whatever the Supreme Court may have decided?

Eric Schliesser

The conditions are new, I think, in so far as the court has given the executive a new route to democratic legitimacy not grounded in parliamentary majorities--namely one that appeals to, or claims to understand, the direct expression of the will of the people. From the perspective of the principle of parliamentary sovereignty that's very dangerous (even though it happens in other democracies).

A. Galan

'The conditions are new, I think, in so far as the court has given the executive a new route to democratic legitimacy not grounded in parliamentary majorities--namely one that appeals to, or claims to understand, the direct expression of the will of the people.'

But is that even true? Johnson has been used that rhetoric well before the decision of the Supreme Court. As it has been widely reported, the strategy of Cummings has been precisely to present a 'People vs Establishment' dichotomy. Furthermore, the appeal to the will of the people is always a generic element of populism. So I do not think that the court has paved the way to something that is always there.

Another thing is that it seems to me that you are criticizing the court for solving some potential problems that will come up along the way. It seems to me that this is an unfair criticism, if one is attentive to the politics surrounding the court's decision. The fact that the court delivered an unanimous decision implies that a lot of negotiation took place and to have dealt with other matters could have potentially disrupted the unanimity behind the decision as it would go into another set of complicated problems, especially with the fact that the some of the members of the court were already treated as 'enemy of the people' with Miller 1 case.

Lastly, I would also argue that this double source of democratic legitimacy and all the complications that it brings, is the daily stuff of politics, and no court will solve it satisfactorily.

Richard

I am not sure I agree with your three 'peculiarities. I think you 'read' in as they say rather than more than is warranted.

(i) in this account it is wholly mysterious why the Government is also accountable to the (unelected) House of Lords.

The judgment gives two roles for Parliament - one is representative, the other is scrutiny. The H o L definitely has a scrutiny function, and given its members are now for the most part appointed by elected representatives it can also claim a very indirect representative legitimacy.

(ii) Because of the (2011) Fixed-term Parliaments Act 2011, which the court discusses in par. 5, it is now possible to have Governments that de facto (but not de jure) lack the confidence of the House of Commons. When a blocking minority prevents a new election and the house is unwilling to pass a motion of no confidence, a Government can soldier on without being able to pass legislation. This is not a hypothetical possibility, but reality now. Unfortunately, the court ignores this.

Well another way of interpreting this is to say that because Parliament is sovereign it decides when governments can appeal to the people or not and this FTPA actually enhances parliamentary sovereignty. The government has to stay at Parliament's pleasure not its own, and carry on debating and legislating in a way that can get a parliamentary majority. Parliament can even force a PM to resign without then going to the country. I do not think the Court ignores this - or rather, it says all of this is Parliament's prerogative.

(III) The paragraph also draws on a contrast between representative and direct democracy, and clearly implies that both can be sources of democratic legitimacy.+ I am unsure this would have been widely accepted prior to the 2016 Referendum.

I don't think it 'clearly implies' that is the case in the UK - quite the contrary, it says direct election of the government is NOT the case in the UK. Para 57 may seem to give you more support, but of course the referendum was authorised by Parliament and they do not need to say it is advisory because as the DO say it is for the Government - subject to Parliamentary approval - to say how that change comes about (if at all). I also do not think this judgment implies that 'Supreme Court is basically saying that parliament is sovereign because, and as long as, the executive is willing to respect the opinions of the high court; and absent a willingness on the part of the executive to act in defiance of Parliament on the expressed will of The People'. It is saying that Parliament is sovereign because that is the constitutional principle at the heart of the British system of government - and the executive cannot simply appeal to the sovereign will of the people under our system. Of course, Johnson being a populist wants to do just that.

What I disagree with is para 43 - I agree with Endicott and Tierney who suggested in blog posts prior to the judgment that Parliament could defend itself and should be allowed to do so. Like them, I feared the SC judgment would be misread (in the sort of ways I think you misread it) and lead to a delegitimisation of the Political Constitution. But that was not their intention.

Eric Schliesser

Hi Richard, Thanks! Very useful. I also think you articulate the intent of the judgment on all three points. A few (modest) responses: (i) yes, the function is scrutiny, but the legitimacy of this scrutiny is not democratic *given the principles of democratic legitimacy they have just expressed.* [I personally think one can make scrutiny legitimate, even democratically legitimate, without voters voting on it.] (II) Yes, and de jure that's surely right. But I also note de facto the situation is problematic and won't go away (until a PM can rely on a broad majority in the commons). (III) Here we clearly disagree. I think the wording is really problematic, and also they have facilitated more not less populism. (Of course, the actual effect is negligible because populists do what populists must do!)

Eric Schliesser

Hi Alexis,
On your first point. My claim is not that the court is inventing populism; rather it is acknowledging in legal fashion the claim that direct democracy is a form of legitimization that is proper to the British constitution. One, to be sure, not practiced in the history of UK, but available (i.e. referendum). Unlike Richard (above), I think that form of legitimacy is given equal weight to the principle of sovereignty in this judgment (intentionally or not).

I think I am aware of the political salience of unanimity and that there was an effort to get people on the same page. But this was all done in very short amount of time and in high stakes case; as I say in the post "great haste can also lead to great mistakes." And I am making a sincere effort to call attention to what I take to be foreseeable dangers of this judgment.

On your last point agreed about the politics/courts. But the Court now has made the double legitimacy an explicit part of the British constitution. This is why I think par. 57 is so problematic. (That's my liberalism if you will; if you like direct democracy, then you think this is a good opening.)

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