What about Parliamentary Supremacy?

The only reason any Westminster system requires the services of a “supreme court” is to satisfy the condition of Locke’s separation of powers doctrine that there be a “Federative” branch of government to adjudicate disputes between different levels of government. With news today that HM The Queen has formally opened The Supreme Court of the United Kingdom, devolution, at least, as taken a significant next step toward a respectable form of federalism.

Unfortunately, The Supreme Court of the United Kingdom, like The Supreme Court of Canada, is now a court with the insidious pretence that its justices are not political actors, be they now the wiser appointed and benign overlords of all the realm. As the website of the court now, boldly, proclaims:

Courts are the final arbiter between the citizen and the state, and are therefore a fundamental pillar of the constitution.

The Supreme Court has been established to achieve a complete separation between the United Kingdom’s senior Judges and the Upper House of Parliament, emphasising the independence of the Law Lords and increasing the transparency between Parliament and the courts.

In August 2009 the Justices moved out of the House of Lords (where they sat as the Appellate Committee of the House of Lords) into their own building on the opposite side of Parliament Square. They will sit for the first time as a Supreme Court in October 2009.

The impact of Supreme Court decisions will extend far beyond the parties involved in any given case, shaping our society, and directly affecting our everyday lives.

For instance, in their previous role as the Appellate Committee of the House of Lords, the Justices gave landmark rulings on the legality of the Hunting Act 2004 under European law, and whether or not a schoolgirl could be prevented from wearing traditional cultural dress.

Since Magna Carta, the High Court of Parliament, as it were, has been—and let us hope it remains—the final arbiter between the “citizen” and the state. Consider that a “citizen” is a “citizen” explicitly because he is the “subject” of a State. And “subjects,” being subjects of limited means in comparison to the state, can readily be subjected to the injustices, intentional or not, of that state.

What The United Kingdom has lost is far greater than any advance for federalism would have warranted. It has lost the explicit recognition—at the very top, anyway—that adjudicating the law is always part and parcel of legislating the law.

It was for this reason that John Locke held the Legislative branch of government to be supreme over all others. What we call Parliament was a necessary public conversation between the Executive and those who write the law as well as interpret the law. Take one aspect out of the mix and you will get power run amuck; so much for the balancing act that a separation of powers doctrine is meant to provide.

But, anymore, few learned men consider reading Locke a worthy endeavour. For whatever reason—maybe the American revolution and the cultural dominance of The United States—Montesquieu’s formulation of Executive, Legislative and Judicial branches of government wins wider popular recognition; those who understand the consequences of putting his formulation into practice a much smaller constituency.

It was to temper “legislating from the bench” that, for centuries, by the Law Lords sitting in the Upper Chamber of Parliament, the justice system of The United Kingdom tipped its hat toward Parliament. Being part of Parliament, the fact that the decisions of the Law Lords carried political consequence, that the adjudication of justice can, indeed, be effected by the idiosyncratic disposition and perspective of the adjudicators was lost on no one. The final court of appeal avoided even the appearance of being oracular.

New Labour seems to prefer change for the sake of change, especially when trying to win respectability for its love of big government. This is certainly not the first time it has looked across the pond and adopted the worst, the intellectually laziest, that Canada has to offer; be it the incoherent cult of “multiculturalism,” or, now, the larger, the more significant evolutions of our own constitutional history.