The common law rules

To every current view we bring expectations from the past. So it is with a visit to London as part of a delegation during Legal Week, the beginning of the legal year in London. But the congratulatory British pomp and circumstance could not obscure the existing challenges to its governmental, judicial and legal institutions.

The government of the United Kingdom is under great stress. Parliament is falling down, literally and figuratively. According to a leading London publication writing about the physical buildings: "Britain's Parliament is broken." It is an unsanitary fire risk and will cost billions to repair or replace. Saying "Britain's parliament is broken" also describes the House of Commons, as shown by its spectacular dysfunction within the crumbling building to deal with the issue of Brexit

Adapting to the dysfunction of the House has led to what may become a major change in the governmental structure of the United Kingdom. Last month, after Prime Minister Boris Johnson in an unprecedented context "prorogued" -- adjourned for a specific time -- the House of Commons, the Supreme Court of the United Kingdom ruled the Prime Minister's action was unconstitutional.

The Supreme Court of the United Kingdom, originally created as a separate institution in 2009, is the successor to the Appellate Law committee of the House of Lords, which met in in the Houses of Parliament in a room off a side hallway. The Supreme Court of the United Kingdom is different. Its title and independence are symbolized by its own formidable building across from Westminster Abby and the Houses of Parliament. In addition to courtrooms it has a museum in its basement celebrating the court and the power of the common law.

Though its title is similar to the Supreme Court of the United States, the Supreme Court of the United Kingdom is different in many ways -- especially one way. Neither the United Kingdom, Great Britain nor England has a written constitution. Yet the court, experienced in the flexibility of the common law, found a way to make a constitutional ruling on the structure of government. It said in a critical paragraph:

"Although the United Kingdom does not have a single document entitled 'The Constitution,' it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified, it has developed pragmatically, and remains sufficiently flexible to be capable of further development. Nevertheless, it includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles. In giving them effect, the courts have the responsibility of upholding the values and principles of our constitution and making them effective. It is their particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits." R (Gina Miller), Appellant v. Prime Minister, 2019 UKSC 41, paragraph 39 (Sept. 24, 2019) (emphasis added).

There is widespread feeling the sentence last quoted above is a liberation of the court to expand its reach. Courts rarely restrain their powers once asserted, and power in one area often leads to assertions of authority in other areas as well.

The prorogation ruling came in the 10th year of the court's existence, just as Marbury v. Madison was in the 14th year of the existence of the U.S. Supreme Court. The practical effect of the court's ruling is that all those acting in Parliament, and all harmfully effected by an action of Parliament, now know there is an expanded option and risk for judicial challenge to governmental acts.

The full potential for the Supreme Court of the United Kingdom has always been substantial. It sits as the final court of appeal for the appellate courts of England and Wales, Scotland and Northern Ireland. In fact the prorogations case came to it as appeals from both the highest civil appellate court of Scotland, the Court of Session, which had ruled against the prime minister, and the Court of Appeal of England and Wales, which had ruled in his favor. The conflict was not necessary for the court's jurisdiction. It takes cases upon application, as with certiorari in the United States, does not require a conflict, and may take direct appeals from any of the courts of appeal.

Though it had no text in the prorogation case, it has treaties, quasi-constitutional and other texts it can refer to in areas of great significance, most importantly involving Human Rights and the rulings of the European Court of Human Rights and the European Convention on Human Rights, both applicable to the United Kingdom.

The European Court of Human Rights was established by a treaty under the Council of Europe. That organization is distinct from the European Union. So even if the U.K. exits from the EU (and its separate EU court, the European Court of Justice), the U.K. will still be bound by the European Convention of Human Rights, by treaty and because the convention was explicitly made part of U.K. law by its Human Rights Act of 1998.

The relationship of the Supreme Court of the United Kingdom to the European Court of Human Rights, and the authority and remedies the U.K. court has under the European Convention on Human Rights is complex but is has already resulted in rulings that brought new privacy rights to the U.K. The court's assertion of authority over a basic issue of governmental structure in the prorogation case may lead it to be more expansive in its interpretation of the provisions and application of the European Convention on Human Rights.

The Supreme Court of the United Kingdom is interesting for its organization and functioning. It has 12 justices, who often sit in panels of five, but also sit in other size panels. The prorogation court sat in a panel of 11. The justices wear no robes, counsel normally do not wear wigs. There is no raised judicial platform. At floor level the justices sit at a semi-circular table opposite an identical table for counsel. All its arguments are televised live. The prorogation argument, which took three days, was watched by several million people. The current retirement age for newly appointed justices is 70, though there is serious consideration to raising it to 75. In any case there are normal changes in the composition of the court. The prime minister can only recommend to the queen appointments of those who have been approved by a select commission, which includes the president and deputy president of the Supreme Court and is mandated to make recommendations based on merit only.

This is the institution, the Supreme Court of the United Kingdom, that has asserted a decisive role in guiding the further adaptation of the U.K. through its current issues. Adaptation is the key. The pomp and circumstance of Legal Week, with which we began, is a celebration of past times that adapted. Each time, each generation, has its own past, which had to adapt to its future. The present is simply the culmination of those adaptations.

We may be hopeful. Since 1789, the year both of the implementation of our Constitution and the French revolution, France, not unusual among other countries, has had five republics and two empires. Only the United States and Britain among the countries of the world, have had the same form of government for these 230 years, through major wars, technological revolutions, and deep demographic change. We may be fortunate in the Supreme Court of the United Kingdom as the current embodiment of the common law, flexible and effective, dealing with issues great and small, in the past and the present. 