A Possible Constitutional Revolution in Great Britain;

also, Why You (Most) Likely Won’t Be Living on Mars

The Supreme Court of the United Kingdom’s (“the Court”) judgment regarding the application disallowing the prorogument of Parliament is possibly a landmark in British jurisprudence; specifically, that the Court may emerge as an independent (and final) arbiter of British constitutional matters; alternatively, the case may be a conservative finding reinforcing the status quo ante and without larger significance.

The Court, cognizant that its motives will be questioned, explicitly states that

the issue in these appeals is not when and on what terms the United Kingdom is to leave the European Union.

The appeal before the Court only indirectly concerned the great matter of the United Kingdom’s exit from the European Union, instead

arising in circumstances which have never arisen before and are unlikely ever to arise again. It is a “one-off.”

This may possibly be read as a limit on the applicability of the judgment. Alternatively, it might be construed as wholly disingenuous.

Prorogument is in effect a suspension of Parliament, during which ordinary legislative activity - and, crucially, as we shall see, oversight - is held in abeyance. In contradistinction to dissolution (typically occurring prior to a general election), Parliament continues to exist, but cannot exercise its constitutional authorities. The executive, however, is not so affected, and may utilize its full lawful powers. However, no parliamentary acts may be passed, nor can new spending be authorized.

Prorogument is a prerogative of the Crown. Only the Crown may prorogue Parliament, and only on the advice of the Prime Minister. The current constitutional settlement in the United Kingdom holds that the Crown is duly obligated to accept the Prime Minister’s advice regarding the matter. As the Court finds,

It is not suggested in these appeals that Her Majesty [the Crown] was other than obliged by constitutional convention to accept that advice . . . [placing] on the Prime Minister a constitutional responsibility, as the only person with power to do so, to have regard to all relevant interests . . .

This is an interesting formulation, and potentially a significant one. It may be the case that the Court is simply at pains to protect the Crown by seeking to place the onus entirely on the Prime Minister for an unconstitutional prorogument. Regardless, from this seemingly anodyne statement flow some striking implications.

In British constitutional theory, parliament is itself tripartite: two Houses, one lower and one upper, the Commons and the Lords respectively, and the Crown (or Queen-in-Parliament). The ceremonial mace placed before the Speaker of the House of Commons and on the Woolsack in the House of Lords represents the Crown’s legislative authority, convening the Lords and Commons for the purposes of enacting statutory law, which may only be entered into law (in most cases) after having passed both houses, at which point the bill may receive Royal Assent, and become a lawful Act.

The last bill to have failed to receive Assent dates to 1708, when Queen Anne refused to to do so regarding a bill concerning the regulation of the Scottish militia; she acted on advice from her ministers.

It is generally accepted that the Crown cannot refuse Assent, as to do so would be to undermine the parliamentary three-in-one principal: theoretically, the Crown’s will - or mental state - is seen in the passage of a bill itself; the bill is introduced by a government ultimately chosen by and accountable to the Crown; for the Crown to refuse Assent would be to act against itself, a logical impossibility.

As prorogument is a prerogative power, not a statutory one, the Lords and Commons do not authorize their own prorogument; that authority rests solely with the Crown, as advised by the Prime Minister. As a practical matter, it is the duty of the Prime Minister to avoid placing the Crown in a quandary wherein in the Crown may be faced with incommensurate constitutional imperatives. However, the Court has implicitly delegated to the Prime Minister the function of making constitutional determinations, with the Court positioned as the referee of these decisions. This is different from the Prime Minister’s ordinary, and uncontested, responsibility to receive legal counsel regarding his or her actions. Prerogative powers result from the common law. As such, they are defined by the courts, not Parliament. This is perfectly uncontroversial. The novelty of the Court’s judgment lies in the fact that it appears to find that the Prime Minister has the responsibility to determine what is, or is not, constitutionally allowed. As prorogument is nowhere defined, again being a prerogative power, this is a quite curious statement, additionally so as the Court has forborne remedying this deficit by setting a standard. What it has instead done, without explicitly defining its judgment as such, is to reserve to itself the power to review the executive’s action, yet refusing to delimit the extent of the prorogument authority. This would appear prima facie untenable: the Prime Minister, or the executive more generally, cannot be given a constitutional competency yet simultaneously withhold a rubric for that same power. The effect is to maximize the Court’s flexibility; we can see, in real-time, the Court self-defining its constitutional role.

As a concomitant of Parliamentary sovereignty,

which as the Court rightly notes is protected by extensive precedent,

the power to prorogue cannot be unlimited.

Further, a corollary of Parliamentary sovereignty is accountability to Parliament, and this latter principle is also

fundamental to our constitution.

It necessarily follows, the Court adjudges, that a prorogued Parliament cannot hold the executive to account. By definition, therefore, the executive therefore would be unaccountable, and this is the

antithesis of the democratic model.

The key passage for the Court follows, and is worth quoting extensively:

a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.

Here again we note the Court’s caution. The Court is aware of the novelty of judgment; hence, its action is “exceptional” and, presumably, rare. From such a wedge, however, much profit can be won.

Let us remind ourselves of the foundations of our constitution. We live in a representative democracy.

This is a striking phrase. It would most certainly be wrong in an American context; the U.S. Constitution is the crystalized operationalization of the will or consent of the American people to collectively govern themselves. It contains substantial mechanisms enjoining accountability upon the governing authority, and also representative elements, but the document itself is not democratic (even if its effect may be) if for no other reason that it cannot be altered at will, nor is there any provision for a withdrawal of legitimacy from the constitutional order it creates. This may be fair but it is certainly not democratic in any ordinary understanding of the term, even if it has had the long-term, second-order, effect of sustaining the world’s longest running experiment in self-governing democracy.

Even more does this phrase ring falsely in the context of the United Kingdom, with its ancient, organic constitution, sovereign - and absolute - Parliament, and crowned head. Parliament is not the foundation of the English constitution (note that there is no British or United Kingdom constitution, as such); nor are “the people.” Each, separately and jointly, are accountable to “the law” as an abstract concept, not itself reducible to any individual Act or statutory requirement, but a larger integrity of which the Commons, the Crown, and the Court itself are but expressions of, and which itself exists as an earthly instance of “the Grace of God.” (The U.S. Constitution is fundamentally secular; not so the English). It is the latter which forms the legitimacy of the English constitutional order at its ultimate remove.

The Court holds that

it is impossible for us [the Court] to conclude that there was any reason

for prorogument, and that therefore

the decision was unlawful.

Yet if there was no reason for prorogument, to accept the Court’s judgment, is this equivalent to saying that the prorogument is

unlawful, null, and of no effect [?]

The Court offers no grounds upon which to reach this conclusion. While the Court states the Crown

hath no prerogative, but that which the law of the land [common law] allows[,]

prorogument is assuredly amongst these. The prorogument might not have been “normal” but as the Court itself acknowledges, the context is in every way exceptional, and unlikely to be repeated. Given this, there is every reason to believe the executive’s actions would be equally commensurate. Unquestionably, the Commons especially, as the elected chamber of government, must have a role in how the United Kingdom’s putative exit comes about. Yet the Court’s own judgment states Parliament has done exactly this, restricting the executive’s scope of action regarding not only the timing of withdrawal, but even the terms upon which the executive may do so. This is not a question of deference towards the executive on the part of courts regarding political matters (although prorogument is inherently a political act, as other courts found, a finding which the Court inverts to diametrically opposed conclusions); rather, it is an acknowledgement that the question before the Court was moot, as Parliament had already bound the executive’s hands quite effectively without the Court’s intervention. Ironically, there was no reason for the Court to act as it did.

The leading character in the Court’s judgment is Leave, and one that is almost entirely off-stage. Absent its presence, it is difficult to imagine the Court would have acted as it did. While the Court is clear that the matter is justiciable, it is less clear on why the provided remedy (nullification of prorogument) was necessary, given the rendition of the facts the Court itself provides. But in doing so, the Court, in a very high-profile case, coined its authority over these matters.

The subterranean revolution in the United Kingdom’s constitutional affairs over the past few decades is underrated. It is the result of increased Americanization, and the continued outwards spreading of American principles and political modes. The effect is the grafting of elements of the American constitutional structure into that of the English. In some instances, the outcomes are perverse: Corbyn (the Labour leader) and Johnson (the Tory) both owe their positions to procedures chosen to ostensibly democratize leadership selection, yet producing arguably less representative, less democratic, and more extreme outcomes. We see here of course the attempt to inject American-style primaries into the British body politic. The results are less than elegant.

Since 2011, parliamentary terms are fixed to five-year periods. Mordantly, the justification was to reduce political uncertainty. Less than a single decade was required to produce exactly the opposite outcome. The previous system, under which prime ministers could call an election at their discretion, was flexible; the current system, rigid, and liable to break.

A 2005 reform separated the appellate jurisdiction from the House of Lords and housed this authority in a newly created Supreme Court. The U.S. model is obvious and indeed inescapable. Previously the Law Lords, formally the Lords of Appeal in Ordinary, served as the court of last resort. The Supreme Court inherited this function, but not analogously; it is a distinct beast. The clue is partly in the title. By contrast, the Law Lords reflected the old fusion of judicial, legislative, and executive, in practice carried out by different entities, but inescapably a single whole, belonging to an evolutionary tradition predating the Conquest in some aspects.

The new system is very different. The Court’s judgment is superficially conservative: English courts have had centuries the right to define prerogative powers and evolve that extraordinary intellectual concept, the common law, and understood this way, the Court’s judgement is entirely proper. But underneath this placid surface there is the corpus foetus of a radical disjunction in the constitutional order of the United Kingdom: a true constitutional arbiter. Such are the contingencies of history, that great changes hinge on the mundane tactical stratagems of politicians seeking advantage.

As adaptable as humanity is, Antarctica stubbornly refuses to yield to a permanent human presence. Our foothold on the seventh, and most southerly, continent remains tenuous, entirely dependent on a very long supply umbilical for even the most basic of supplies, without which our outposts, built for national pride and scientific research, would soon fail.

Nonetheless, Antarctica is an Elysium compared to Mars. At least on Antarctica, you can breathe the air. Rescue - most of the time - is only a few thousand miles distant. Fresh water acquisition is a straight-forward proposition.

By contrast, on Mars, nothing comes easy. You have to produce your own oxygen. If you don’t, you die. Ultraviolet exposure in Antarctica is a significant concern. On Mars, it is life and death. Martian soils are poisoned with perchlorates, known endocrine disrupters, negatively implicating prospects for a self-sustaining population (in reproductive terms) on the Red Planet. Martian temperatures can verge on the temperate, but also degrees of frost in the low hundreds. Coupled with the low density of the Martian atmosphere, a factor of 100 less than that of Earth’s at sea level, and you will never step on the Martian surface without a protective suit. If you did, death from exposure would be swift. Antarctic settlements primarily rely on diesel generators to produce power (solar is useless during the permanent night of the antipodean winter). Fossil fuels are not an option on Mars; most probably, a nuclear reactor, likely several (for redundancy), will be required. On Earth, most nuclear reactors indirectly produce power by superheating water. There are other options, for example Stirling engines, that avoid water cycles, but scaling these to meet the demands of an entire colony remains an unsolved challenge.

Imagine a society in which every single person, at every single moment, poses an existential threat. This encapsulates the lived reality of any proposed Martian base. Martian settlers will live at the very limits. The margins between life and death will be very narrow, and the settlements themselves will have thin safety margins. Intuitively, the movements and actions of all Mars settlers will be closely monitored. If you are of the opinion that Xinjiang Province in China is at present a libertarian paradise, then you are the ideal choice for the panopticon of all Martian colonies.

Especially during the winter, Antarctica offers limited options for evacuation. Yet this is nothing as compared to Mars. Presumably, at least initially, Mars settlers will be able to escape in the same vehicle they arrived in. Later, however, as the settlements increase in size, this will likely not be an option (a reusable spacecraft that is used only one-way, and then as an escape pod afterwards, is not reusable for all practical purposes). Perhaps additional escape options will be provided. These will need to “launch-on-demand”, a capability no crewed vehicle possesses at present. The closest analogue would be abort systems for crewed spacecrafts, but these have limited capabilities and assume a quick return to Earth. On Mars, this is not possible, for obvious reasons. Escape to orbit might be the likely alternative. But unless you are carrying sufficient fuel to either de-orbit or escape orbit back to Earth, one type of demise has simply been substituted for another.

Given time, and a more robust presence on Mars, escape to another Martian colony might be possible. Yet given the survival constraints incumbent on all such colonies, the presence of additional persons may be unsustainable for anything beyond the short-term, presuming (for the purposes of resource optimization) that the capacities of each colony will be tailored to an assumed number of inhabitants. Obviously, these constraints could be loosened temporarily, but this only transforms an acute problem to a middle-term time-frame. If a Martian colony is lost, an equivalent capacity will not be replicatable on demand. Post-disaster reconstruction is difficult enough on Earth; on Mars, this is an orders of magnitude harder problem.

The prognosis for any Martian colony is bleak. Short-term excursions are not only possible, but likely inevitable, given current technological capabilities, assuming sufficient will. A self-sustaining colony, however, is fanciful. Any such settlement will be wholly dependent on Earth for even basic logistical requirements and liable to catastrophe at any moment, with poor options for escape. Falsify this, by all means. But do so first in Antarctica, or even the Moon.

The United States has threatened to withdraw from the Universal Postal Union over long-standing concerns regarding the lower shipping rates charged by China (due to its formal status as a developing country) as compared to the United States, which leads to strange outcomes such that it may cost more to mail a package domestically than to ship that same package, to the same destination, internationally, trans-Pacific, from China, which amounts to a subsidy for Chinese companies, who now jointly comprise 30% of global e-commerce fulfillment. The U.S. threat is one instance of an underrated general trend away from broad-based international treaties and organizations ongoing since at least the collapse of the World Trade Organization Doha Round. The European Union-Mercosur free trade agreement, at present scuppered, ostensibly for environmental reasons, by the Austrian parliament, is another. Equally importantly, we also here revealed see an instrumentality of climate politics: the intersection of climate policy and political economy, wherein the assumed imperative of climate action in practice serves to further protectionist and dirigiste ends. That the politics of climate change, strongly Left-inflected, furthers highly illiberal ends is a deep irony worthy of Greek tragedy; our nemesis, in the ancient sense.

UPDATE: The Universal Postal Union voted to accept the Trump Administration’s proposal that states exceeding certain threshold conditions - for example, cumulative inbound mail volumes above 75,000 tons per annum - may set (“self-declare”) their own postal rates. While this change was enacted through a multilateral forum, it was very much an “America-first” solution; there was little evidence of international solidarity in the outcome. Perhaps relevant to the Boris Johnson maneuverings in the British Parliament, it was unquestionably the Trump Administration’s demonstrated willingness to abandon agreements, even long-standing agreements, that enabled this turn of events. As Paul Atreides remarked,

He who can destroy a thing, controls a thing.

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