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Editor's blog

Courts and politics

9 Sep 19

Courts should be able to intervene if an abuse of power threatens the balance between executive and legislature

“Testing the constitution to breaking point.” One would not expect the description to be applied to a Prime Minister and Government of the party hitherto associated with stability and continuity, but that is where we are. And it is hard, in commenting on the month’s events, not to be drawn back to the current high drama.

Academic commentators may be expected to be as objective as anyone over the controversy surrounding the move to prorogue Parliament for roughly five of the eight weeks then remaining until what Mr Johnson has determined will be Brexit day come what may. Many have voiced deep concerns over this use of prerogative powers, to name only one of the points of controversy. But will the courts intervene? And should they?

Political territory or not, there is at least an argument that if the executive attempts to circumvent the accepted role of Parliament in holding it to account, thereby upsetting the balance between these two of the three sides of the constitution, then the third side, the judiciary, should in principle be competent to step in and rule what is and is not acceptable. There may be some acts that are considered to be political tactics rather than a possible abuse of power, and not suitable for judicial consideration, but that does not affect the principle. If the outcome of the various present court proceedings – begun separately in all three UK jurisdictions and surely destined for the Supreme Court – is that political events must be left to run their course even where questions arise over proper use of powers, what is to stop matters being pushed even further on a future occasion, which given the pace of developments might arrive sooner rather than later?

If the sovereign Parliament, answerable to the electorate, can be sidelined by executive fiat, the very notion that these are matters that should be left to be determined by Parliament becomes somewhat meaningless. It is no surprise that discussion of the need for a written constitution is also becoming fashionable; but if those who hold power are able under the system as it stands to wield it in a way that suits themselves, there must be little prospect of that coming about.

Events will no doubt have moved on considerably between this being written and being read, but I suggest the fundamentals will remain valid. Whether or not the courts see fit to intervene over the precise actions under scrutiny, it is to be hoped that they will assert their authority to ensure that the checks and balances that have undoubtedly been regarded as built into our constitution, are not allowed to be distorted.

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