What might be the consequences of years of constitutional turbulence?by Alex Dean / June 17, 2020 / Leave a comment
The question of how the UK constitution should work has been given new urgency. The Gina Miller court cases brought the issue to wide public attention; the government’s handling of the pandemic has generated heated discussion around executive powers and their legitimate use.
It was against this backdrop that I called Nicholas Phillips to ask about the rule of law. One of the UK’s most significant legal figures, Phillips served as Master of the Rolls, the second highest-ranking judicial position in England and Wales, before his promotion to Lord Chief Justice—the top post in E&W. After a subsequent stint as the UK’s most senior law lord, he became the inaugural president of the UK Supreme Court on its creation in 2009, a position he held until 2012.
Now 82, Phillips is back in the Lords as a crossbencher. He is a careful talker and naturally thoughtful, as befits a former judge. Even so, he “had some concerns” about the UK’s position. What’s more, “there are aspects of the rule of law which go far beyond the current emergency,” he said.
The most significant constitutional reform in recent times was the creation of the Supreme Court, a consequence of 2005 legislation which “essentially intended to underline the independence of the judiciary from the legislature and the executive,” said Phillips. Previously the 12 law lords had sat in the Upper Chamber. Four years later they moved across Parliament Square and into Little George Street.
But it was arguably not until 2017, and the first Gina Miller case, that the Supreme Court acquired mass public recognition. That interest grew still further two years later, when the government suffered a humiliating defeat on the prorogation of parliament. Were Phillips’s successors right to rule in the way they did?
“Looking back with hindsight, I think the decision was clearly right,” said Phillips. It was remarkable that “no positive justification [for the prorogation] had been put forward” by the executive.
The first question was whether prorogation was a legitimate subject for the courts. But “If you said it’s not, what would the position have been if [hypothetically], some reporter had managed to prove that the prime minister had been bribed to prorogue?” If the courts do not have the right to police such limits, “who does?”
“One view might be ‘well, parliament itself…