When Aidan O’Neill QC, counsel for SNP MP Joanna Cherry and the other parliamentarians, asked the UK Supreme Court to save the “Mother of all Parliaments from being shut down by the father of all lies” it was justifiably a sensation. Finally the crux of the case about prorogation of Parliament was distilled and expressed free of the legal jargon about the justiciability of the prerogative, and the nature and limits of judicial review in the face of executive power.
O’Neill also drew attention to the dark side of liberal institutions when he asked the Supreme Court not to make this their “Dred Scott moment”. The reference was to Dred Scott v Sandford (1857) – widely regarded as the worst decision of the Supreme Court of the United States. The implicit warning was that the UK judges should not commit a mistake of such damning historical proportions. Less well known is the fact that England’s imposition of slavery in its American colonies up until independence in the late 18thcentury was a major part of the U.S Court’s dismissal of Dred Scott’s claim to be a free man, and a citizen of the United States.
Whether he intended it or not, in uttering the words “Dred Scott moment”, O’Neill did three things. First, he dredged up England’s unsettled colonial past. Second, he pointed to the looming demise of a constitutional compact where sovereignty is vested in an institution (Parliament) rather than the amorphous ‘people’. Third, and perhaps most importantly, he exposed the spectre of forces – not unlike the conditions in the United States in 1857 – such as the unresolved Irish question, and the accelerated racialisation of England and its others that is now driving us apart.
In 1857 the US Supreme Court decided that Dred Scott, a member of the “negro race”, could not have been included among the “men” that the Declaration of Independence asserted were self-evidently equal:”We hold these truths to be self-evident”, the Declaration said,
that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriving their just powers from the consent of the governed.
This soaring rhetoric by which the yoke of English colonial domination was thrown off was qualified, Chief Justice Taney remarked, by the fact that when the Declaration was written and the Constitution framed, neither “the class of persons who had been imported as slaves, nor their descendants … were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument”. The proof he deployed for maintaining the institution of slavery were the attitudes and practices of venerable England, and English Government:
And in no nation was this opinion more firmly fixed or more uniformly acted upon than by the English Government and English people. They not only seized them on the coast of Africa, and sold them or held them in slavery for their own use; but they took them as ordinary articles of merchandise to every country where they could make a profit on them, and were far more extensively engaged in this commerce than any other nation in the world. The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic.
English colonial values and practices drove the pernicious reasoning in Dred Scott. The calamity that followed was a bloody Civil War to resolve the constitutional question.
There is a former colony on this side of the Atlantic too. Among the many mistakes of the referendum campaign was the failure to identify and discuss the implications of withdrawal from the EU on UK’s border with the Republic of Ireland, and the need to protect the fragile peace that has followed England’s colonial legacy there. Cameron in his catastrophic gamble paid no attention to it. Most of the Tories and the DUP, and everyone who just wants the UK to “get on with it”, are willing to risk two decades of hard won peace. It is the return of this repressed colonial past and the attitude of condescension and neglect that shows up England’s callous disregard for its closest neighbours.
As with the Dred Scott case, the underlying constitutional problem faced by the UK today is far deeper and more wide-ranging than the prosaic legal disputation would evidence. The legal challenge of the prorogation of Parliament currently underway shows little promise of resolving the major constitutional tensions at stake. The arguments on the lawfulness of the prorogation have mostly been confined to the sparse categories in the established grounds of judicial review of executive action. The question being asked is whether the Prime Minister acted for an improper purpose in his advice to the Queen – that is, not, as he stated, to facilitate the development of a new legislative programme for a future Queen’s Speech, but to frustrate Parliament’s full exercise of its functions to hold the executive to account and pass legislation where necessary. An absolutist Prime Minister has shut down Parliament and threatened to ignore legislation and the decision of the Supreme Court. The limited range of judicial review does not have the capacity to establish or address the issue of the larger constitutional guarantees that are necessary to establish and protect a free and open society where the authority of one is institutionally accountable to the many. Is more evidence needed that the UK Constitution is dead?
In the UK and elsewhere, liberal juridical and political institutions are having their efficacy and legitimacy called into question. The UK Parliament itself has reached stasis by first endorsing the triggering of Article 50 by a majority of 384 votes, and then, on three occasions, rejecting the Withdrawal Agreement with the EU that sought to facilitate an orderly exit. Proroguing Parliament either as a negotiating tactic with the EU or as a means of removing an impediment to a ‘no deal’ Brexit is the end result of Parliament’s own failure and a global crisis of liberal constitutionalism. The UK Parliament failed to ensure that the referendum question of 2016 was framed to open deliberation rather than close it; an ineffective Opposition has dithered over whether it wants to remain or leave the EU; and new communications technologies create constituencies that can be mobilized by forces beyond the established political parties in capitals around the world. Indeed, the last aspect is a global phenomenon of a fractured and fragmented demos being constituted and manipulated with information on the economy, immigration, or security produced outside the previously agreed regimes of contestation. Several centuries of relatively stable structures and rationalities of the state (which were by no means benign) have collapsed.
What we are seeing now is precisely the result that Prime Minister Johnson and his backers want. And the so-called radical left is marching in step with him with their “neutrality” on whether the UK should remain a member of the European Union. It has always been premature to call any political formation ‘post-national’. The grip of nationalism has persisted in all polities, and been embraced by left and right. But one of the most progressive aspects of the European Union is that it aspires to reach across borders, cultures, religions, and political traditions. While its failings are many – including its failure to fully acknowledge the numerous imperial legacies of its constituent states; and to address social and economic inequalities – it has broken down the extremes of national self-interest and the myths of sovereign autonomy.
Back in 1857 Chief Justice Taney used the English institution of slavery in their colonies to distort the meaning of the words in the U.S Declaration of Independence. England and the rapidly disintegrating UK now face their Dred Scott moment to the extent that the dispute between the executive and Parliament has been loaded with political, social, and economic conflicts that cannot be contained within the dispute around prorogation. The outcome of these wider disputes look like they may be determined – at least for now – by the base tendencies that Chief Justice Taney identified in England and its Government. Our deepest fear must then be about the conflict that is yet to come.
Stewart Motha is Professor of Law and Dean, School of Law, Birkbeck, University of London.