https://www.firstthings.com/web-exclusives/2019/10/faux-americanization-in-britain
As the Parliament of the United Kingdom descended into chaos and internecine warfare, and Britain’s highest court plunged into the political fray, something became clear, if it wasn’t already: Brexit is not simply a contest over Britain’s future ties to Europe or its future role in the world. It is also an existential struggle over the very nature of the British state and its unwritten constitution. Britain has been brought to the brink, in part, by a process of faux Americanization—the selective adoption of facets of the American system, in some cases the least desirable aspects of the American system. Below are a few important examples of the dynamic.
In 2009, Britain removed its court of final appeal from the House of Lords, and thus the Parliament, to establish a separate high court styled in the American manner as “the Supreme Court.” It was perhaps inevitable, therefore, that courts in the U.K. would increasingly seek to exercise American-style judicial review over the unwritten British constitution. As a result, the principle—established for centuries—that supreme, constitutional authority rests with the Crown-in-Parliament has never been at greater risk.
We have today the spectacle of both Scotland’s Court of Session and the U.K. Supreme Court ruling that Prime Minister Johnson—really the Queen, acting on his advice—unlawfully prorogued Parliament. The executive, according to these rulings, did not provide proper justification for its actions; by this rationale, the courts alone decide constitutional propriety—not the Crown-in-Parliament, and not the political process.
Cleverly, both courts presented their decisions as protecting Parliament’s interests. No one should be fooled. The judiciary is claiming constitutional authority for itself, in defiance of British precedent, and at the long-term expense of the executive (the prime minister, government, and Crown) and Parliament alike. It is Parliament, after all—in theory, reflecting the will of the people—that empowers a prime minister and a government in the first place. The courts, ignoring the unitary, constitutional principle of the Crown-in-Parliament, instead pretend that the British government is the American one: a system of three, co-equal branches, in which the judiciary makes the final call on any constitutional question.
