The principle of the tripartite separation of powers puts forward three branches of government: 1) the judiciary, 2) the legislature, 3) the executive.
The judiciary exercises the law, and binds the executive to prevent it from breaking law. The legislature creates law, but is bound by the agenda set by the executive. In other words, the judiciary has power over the executive, the executive has power over the legislature, and the legislature has power over the judiciary.
But this circle of power is not in uni-directional. The legislature has power to scrutinise law and limit the reach of the executive. The executive can influence the composition of the judiciary. The judiciary is responsible for interpreting the law, which might mean striking down laws which are unconstitutional.
This describes the checks and balances at play in the three branches of government.
The constitution of the USA abides by this principle:
The president and his cabinet is the executive.
Congress and the Senate combined is the legislature.
The Supreme Court is the judiciary.
However, the UK does not have such a clear-cut separation of powers. The executive, the prime minister and his cabinet, is made up of members of the legislature. In practice, this means parliament that the separation of powers is blurred, but the principle still works in the sense that parliament scrutinises legislation and the cabinet sets the agenda for legislation. In general. But it doesn’t always work this way. Members of parliament are able to raise motions to the speaker. And here is where things get interesting (and dangerous).
For the past year, parliament has been passing laws to limit the ability of the executive to take executive action, laws which apply only to the direction of the executive and not to the populace. This has given rise to the non-stop political turmoil and instability over the past 3 years, since the UK elected to leave the European Union.
Amidst all this turmoil, the Supreme Court of the United Kingdom sees itself fit to declare an act of the Prime Minister, the executive, to be unlawful.
This is possible because the United Kingdom does not have a written constitution. It has a system of common law, where judgements are passed based on the interpretation of legislation and precedent. Legislation are laws passed by acts of the parliament. Precedent are principles of interpretation that the court has historically abided by. Precedent is a key feature of common law because it is maintains consistency in judiciary rulings, which is a requirement for fairness.
However, this time, the Supreme Court has made a constitutional ruling without precedent. It has declared an action unlawful, despite no precedent or law preventing it previously. What this means is that the Supreme Court has created a constitutionally binding law, without public debate, without electoral mandate, without parliamentary scrutiny.
The Supreme Court has overreached. It is no longer interpreting law – it is now creating it.
The Supreme Court has set a new precedent. It now has unaccountable powers over the constitution.
But is this actually a problem? Don’t the courts set precedent anyway? The answer is yes, they do. The difference this time, is the kind of precedent that has been set. Some wealthy private individuals have taken the executive to court over an action they disagreed with. Despite this action being perfectly lawful previously, the court has now retrospectively ruled that the executive’s actions are unlawful. This means that the Supreme Court can retrospectively bind the executive. The only unelected arm of the government now has the highest uncontested power over the nation. This is the mark of a oligarchy, not a democracy.
I suppose we have Brexit to thank for unveiling this fundamental flaw in the institution. It has shown that the Supreme Court doesn’t work with the principle of common law.
How did this come about, how was this even possible? A bit of modern history: the Supreme Court is a relatively new invention in the United Kingdom. It was created in 2005. When Tony Blair was Prime Minister. The motivation for its creation was out of concern that the UK’s institutions of government did not conform to the European Convention of Human Rights, drafted in 1950 by the Council of Europe, the forebearer of the European Union.
Where do we go from here?