Tobold's Blog
Tuesday, September 24, 2019
History being made

At high school I majored in both Chemistry and History, but then went on to study Chemistry due to better job prospects. Still I remain fond of History as a subject. That comes with a useful skill: Being able in the day-to-day din of the news cycle to spot the bits that might potentially be of historical significance. One of those happened today.

Imagine that the US Supreme Court would make a ruling unanimously in a case against the government. That would send a pretty strong signal. However it would not change the US constitution, because the US Constitution is a written document that requires a very special procedure by legislators to be modified or amended. The UK works differently. It doesn't have a constitution in a single document; instead it has 400+ years of precedent, and the sum of court rulings, laws decided by parliament, and customs regarding how the country is run together form a constitution. The difference is that if the UK Supreme Court makes a ruling unanimously in a case against the government, that not only affects that particular case. It also *sets* a precedent, and thus effectively in some way changes the constitution.

Today's ruling of the UK Supreme Court is widely seen as a blow to the UK government, and is by some interpreted as a blow against Brexit. As such of course it is subject to political commentary, and to complaints against courts meddling with a political decision. But the fact that all 11 judges agreed on the decision, regardless of political affiliation, shows that they were rather concerned with the constitutional aspects of the case. If you have a parliamentary democracy, can the government be allowed to suspend parliament, effectively removing the checks and balances that the constitution put into place against a government's possible overreach? Fortunately for parliamentary democracy, the answer was no. And that is now precedent in the UK constitution, regardless of which party or other institution will be the next one to try something similar. It is not a decision against "the" prime minister, but against *any* prime minister or other leader trying to circumvent UK parliament.

In a world in which over the last decade various populist leaders have tried to disable the checks and balances that prevent them from doing whatever they want, this is a beacon of light. And that is true even if you happen to be pro-Brexit.

Awesome comment as usual. Spot-on. Thanks.
I'm a bit confused. How is the "Unanimous decision" relevant?

It seems to me the US mechanic of a Constitution that has to be amended with a huge effort instead of a simple Supreme Court vote is far better.

Is all you have to do to rip the UK completely apart is to stack the Supreme Court in your favor? That's pretty frightening.
@Smokeman: It might come as a surprise to Americans, but most non-US countries don't "stack" their Supreme Courts at all. Appointments aren't done by the government and thus party affiliation is not a criterion. Judges rise by merit through the judiciary system, and a special selection commission for example in the UK appoints a supreme judge. While then the prime minister and The Queen get involved in the whole ceremonial stuff, the prime minister can't appoint anyone not selected by the selection commission. Many supreme court judges in countries outside the USA don't have party affiliation at all.
Oh! Ok.

That didn't answer my question, though. How is the unanimous decision relevent? Is that somehow "more decided" than a simple majority?

Also, have you met the human race? If there's a way to stack the Supreme Court, they're gunna stack the Supreme Court. It looks like all you gotta do in the UK is "adjust" what "Rise by merit" means and stack the selection committee.

Europe makes a lot more sense now, thanks!
Supreme Court decisions everywhere are usually a sign of their times. As society evolves, so do rulings. But then you usually get some sort of split vote, with the more progressive members voting for the "modern" view, whatever that is, and the more conservative members voting for the "classic" view. An unanimous decision means that it wasn't a question that is likely to change with time.
"Rise by merit" this is easy to describe. In the UK most (but not quite all) of the senior judiciary are barristers. There are about 10,000 barristers in the UK. There are about 110 High court judges, above them are the court of appeal with 39 judges, and finally the supreme court with 12 of which the courts normally sit as a 5 but for special cases an 11.

Essentially as a barrister and a judge the way you argue your cases is open to academic comment by university law lecturers, and so the appointment committee has a wealth of reading to see how good a barrister, or a judge is, and the committee only appoints the brightest barristers to become judges, and the judges must write judgements that the academics believe to be of high quality if they want to move up the chain. The whole system is merit based, so the supreme court of the UK is effectively the brightest lawyers of their generation, it completely ignores political afliation. The other very different point is that previously compulsory retirement for judges was seventy five years of age, but has recently been reduced to seventy years of age, thus supreme court judges in the UK change regularly as they are not appointed for life like the USA.
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