British Turmoil After Brexit

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In December, 2019, the British people voted to return an historic Tory majority to Parliament with Boris Johnson as Prime Minister, paving the way for the UK to leave the EU on January 31, 2020, an historic rupture known as “Brexit," reminding politicians of all political persuasions that the British people meant what they had said in 2016, when they voted for Brexit by majority in a referendum.  Along the way, a rattling of British constitutional norms tested the UK’s unwritten constitution in ways not seen, many argued, since the English Civil War and Glorious Revolution of the 17th century.  

Amidst all of this, Britain’s shutdown in response to Covid-19 has shortened further her one year post-Brexit track to produce a free trade agreement with the EU and a much coveted one with the U.S., while reshaping government policy in ways that will determine whether Boris Johnson’s Disraelian vision of private-led economic growth, with government to fill remaining social gaps, can survive.  And, while the Covid crisis has stolen attention, other serious post-Brexit challenges remain.  Some threaten the integrity of the UK, with Scotland — whose people are overwhelmingly opposed to Brexit — using events to seek its own independence, and Northern Ireland, as divided as ever.

The combination of the UK’s withdrawal from Europe and a global pandemic have left a constitution sorely tested, a Tory Party sounding like Labor, a Labour Party in tatters, and a United Kingdom at risk of disunion. Join us as we sort it all out with our experts.  


Prof. Alberto R. Coll, Director, Global Engagement; Vincent de Paul Professor of Law, DePaul University College of Law

Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University Pritzker School of Law

Prof. Maimon Schwarzschild, Professor of Law, University of San Diego School of Law



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Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at



Greg Walsh:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is titled “British Turmoil after Brexit.” My name is Greg Walsh, and I am Assistant Director of Practice Groups at The Federalist Society.


      As always, please note that all expressions of opinion are those of the experts on today's call.


      Today, we are fortunate to have with us Professor Alberto Cole, Director of Global Engagement at the Vincent de Paul Professor of Law at DePaul University College of Law; Professor John O. McGinnis, the George C. Dix Professor in Constitutional Law at Northwestern University Pritzker School of Law; and Professor Maimon Schwarzschild, the Professor of Law at the University of San Diego School of Law.


      After our speakers give their opening remarks, we will go to audience Q&A. Thank you all for sharing with us today. John, the floor is yours.


Prof. John O. McGinnis:  Well, thank you very much. We're delighted to be here to talk about, for once, an issue of another country's constitution. But a country whose constitution formed our own, the British constitution, and in the specific context of Brexit.


      As I'm sure our listeners know, Brexit was the decision by referendum of the British people to leave the European Union. That decision reversed a decision that had also been made by referendum many years ago, around 45 years ago, to join the European Union. And that raises a lot of interesting constitutional issues.


      Of course, the first kind of constitutional issue was that raised by joining the European Union and some people complained that the European Union was incompatible with the very deep rooted view of parliamentary sovereignty because regulations of the British people, at least some of them, were made by the EU and not by the British Parliament, itself. And that, I think, was one of the strong arguments in favor of Brexit. In any event, Brexit succeeded a very close vote by referendum.


      But in some sense, there was still not even -- there was agreement to leave, there was not an agreement on the terms to leave and that led to quite a few years of parliamentary maneuvering, when Boris Johnson took over as Prime Minister, he decided to suspend or prorogue Parliament for five weeks to begin a new session of Parliament. And his critics thought that this was an attempt to prevent further discussion and debate on his Brexit proposals.


      Here comes the second, I think, important issue about Brexit, which was the decision of the Supreme Court—the United Kingdom—to declare that prorogation illegal. Of course, some people thought that was, itself, an act that violated the British constitution, of course an unwritten constitution, by giving the Court discretionary powers. And many people have argued that it is the Court's equivalent of Marbury v. Madison in the United States.


      But that's not the end of the constitutional issues that are raised by Brexit. Another one is, for the next few years, Britain will be abiding by the EU's rules, despite being outside of the EU, and there's been a suggestion that the government will be able to instruct British courts about how far to abide by these rules. Because, of course, there could be some kinds of divergence, and the concern there is, so that we might say the reverse of the Court taking away power from the government, but the government somehow taking away power from the Court by issuing instructions about how far they can -- the rules can diverge -- British rules can diverge from the EU.


      Finally, I guess there's a larger and more general question is what does the British constitution look like going forward? In the referendum decision, two of the four nations, as it is called, of Great Britain voted to remain. That is Scotland, and the Northern Ireland. And those nations govern themselves for much of their business under devolved powers.


      What does it mean for the British constitution going forward when some of the nations disagree on matters as important and as reminisce as the decision to leave the European Union? With that, I'm going to go into the background because I'm very much looking forward to listening to our two experts here. Maimon Schwarzschild is a D-Day British Barrister and Alberto Coll is the Director of DePaul's center on Latin American and European Law. So we really do have two experts here on something that is quite momentous, I think. Momentous in the history in the closest, the oldest parliamentary democracy, and the democracy and the constitution that gave rise to our own Constitution.


      So with that, Maimon, would us some of your own views?


Prof. Maimon Schwarzschild:  Thanks John. And it's great to be here and great to have a chance to talk about this in the teleforum, especially since we're all socially distanced in this sort of extraordinary period.


      There have been very interesting constitutional developments, as you've suggested in the U.K. and Britain. In a sense, these constitutional developments, the really dramatic things that have happened, date back to Britain joining what was, then, the common market in 1974. And in the nearly half-century since then, their laws over the course of Britain's membership in the -- what eventually became the European Union, a very gradual but quite inexorable loss of sovereignty and of democratic self-government in England, and in Britain. And in effect, you had two developments. One was that loss of sovereignty. And the second was what has been called a juridification of British law and of the British constitution.


      Remember, the constitutional scheme in Britain that was famously described and articulated by A.V. Dicey at the beginning of the 20th century was the idea, first of all, of an unwritten constitution, second of all, of parliamentary sovereignty. Those are the two ideas that are most associated with Dicey. But Dicey, actually, more complicated, more interesting than that, and also part of the Diceyian package, in addition to the unwritten constitution, parliamentary sovereignty, was the idea of common law and the idea of civil liberty.


      With the common market, and eventually, the EU, in a sense opposites -- at least some opposite phenomena came into what became a kind of quasi-British constitution. One was a written quasi-constitution in the form of the treaties and the various human rights charters. A second was judicial enforcement and judicial review, which hadn't existed in Britain before, and which was euphemistically often called keyly illogical, which real meant goal directed and what was the goal? The goal was more power for the European Union Bureaucracy and less self-government, less democratic self-government for the member states. So that was the tension, really, that existed over the nearly half-century of Britain's membership in the -- what evolved into the slowly, but inexorably, into the EU.


      Ironically, Brexit, itself, also helped open the way to enlarged, or some people might think weaponized, judicial review. You, John, referred to a couple instances of that. The, what's now called, the Supreme Court in Britain, itself, a new institution declaring the prorogation, which used to be routine, illegal in the context at the end of 2019. The Supreme Court, in the related decision -- so-called Supreme Court, in a related decision also said that the executive management of foreign relations, known in England as a derogative power, was also improper, at least in the Brexit context. So really, the constitutional questions for the future are going to be what is the role for the courts in creating the kind of entrenched constitutional system and grafting that on to what had been the unwritten common law parliamentary sovereignty Dicey constitution.


      And then there are the other constitutional challenges, which you eluded to John, relations between the countries of the U.K. England is 90 percent, or nearly 90 percent of the population of the U.K. Scotland is less than 10 percent of the English population. Northern Ireland is quite small. Wales, which is a separate country as well, voted to leave. So that's yet a different situation. So what are the relations between the countries within the U.K.? What are the relations going to be between the U.K. and the EU? And that's still very much up in the air. And what are going to be the pressures on separation of powers within the U.K. between Parliament, the courts, and the devolved other countries of the United Kingdom?


      So it's a fascinating situation and lots of drama.


Prof. John O. McGinnis:  Alberto.


Prof. Alberto R. Coll:  Thank you John. I agree very much with what Professor Schwarzschild said has said. And I want to follow up on a few key points.


      So the first issue, which was clearly at the heart of Brexit, was this growing tension between the British constitution and British sovereignty on the one hand, and the European Union's pretentions, we could say. And the pretensions of the Brussels bureaucracy and the European super national courts. I thought, yes, a long progression from what was initially viewed as a common market, a single market, to now a project for a federal Europe, which Britain gradually resisted and which, in a way, stopped to some extent but not wholly to various opt-outs that it negotiated. But this problem, this tension, between the British desire for sovereignty and the European Union is one that we see today in other parts of Europe.


      This is the interesting thing. And very recently, the Constitutional Court of Germany issued a decision challenging these super national federal pretentions of the European Union. The decision of the German court, of course, shocked the establishment in Brussels and everywhere else. But the German court reminded people that Europe is not a federal state and that national courts continued to have the ultimate say in what the constitution means. And the Court ruled that the practices of the European Central Bank were actually violating the rights, constitutional rights, and the sovereign prerogatives of the German state. So we're going to see how this is all going to play out. But we see that this is not just a British issue. That's even in Germany, the heartland of the European Union, there's a growing sense among many people that this federal project, this European federal project is going too far.


      The second issue is the so-called, as Maimon calls it, the so-called supreme courts. This Supreme Court, of course, was created by a labor of Parliament at the end of the '90's. Until then, the House of Lords, the Law Lords panel at the House of Lords, had really been playing the role of a supreme court, of sorts. And everything was working fine. And in fact, one has to wonder why the Supreme Court was created because there was no need for it. But I think what Professor Schwarzschild pointed out is quite accurate, that there was a sense of maybe trying to push the system in more of a federal direction. And also in the direction of judicializing the British legal system. And so then later, Parliament pushed through and created this Supreme Court.


      But interestingly enough, the Supreme Court, unlike our Supreme Court, was created by an act of Parliament. So what this tells me is that the recent decision is no Marbury v. Madison, as much as it might pretend to be, because it only challenged the actions of the executive. But no one in Britain today, that I think would command a popular support, would be able to stand up and say that the Supreme Court can undo acts of Parliament. And I think -- and one of the things that Boris Johnson's advisors have been talking about is the idea of using their majority in Parliament to kind of clip back some of the powers of the Supreme Court, which again, is not rooted in a written constitution, like ours is. But the Supreme Court, itself, was created by a parliamentary act and I think it would be very healthy for Parliament to clip the wings of this court to some degree to bring it more into line with the functions that the Law Lords and the House of Lords had been playing, very effectively I should say, up until the late 1990's.


      And then you know the third issue, of course, is the future of the United Kingdom, particularly Scotland. And Scotland is important, even though they have barely 10 percent of the population of the United Kingdom, it's very important symbolically, but also strategically. And that's where the British Trident submarines are based, in Scotland. And it's of tremendous importance to the identity of the United Kingdom as a major power. Still a ranking global power with the world's fifth largest economy.


      Boris Johnson's project is literally to use government spending on infrastructure to tie Scotland more closely to the United Kingdom. Now, whether he's able to do this now, in the aftermath of COVID, and just the devastating impact of COVID on British finances and the British economy remains to be seen. But that is his strategy. The strategy is, okay, we're going to tie the Scots more closely and we're going to persuade them that they have a lot more to prosper by remaining in the United Kingdom than some future association with the European Union. And of course, it's also helped that oil and gas prices have collapsed all over the world. So the old idea that Scotland could make its way, economically, in the world through its North Sea oil, is really totally decimated today.


      Not to mention the fact that, if you look at money transfers today, a lot more money goes from the rest of the United Kingdom to Scotland than the other way. So Scotland is very heavily subsidized by the United Kingdom. And I think these are pressing arguments that could very well persuade even a small majority of Scots to remain in the Union.


      So it's going to be very interesting looking ahead. I think that the performance of the European Union over the last four years, since Brexit was voted, has not been very reassuring, in terms of people that were in the middle and wanted to have an association with the European Union that would not be so tight. And particularly, I want to underline the issues of the European super national courts, the European Court of Justice, and the European Court of Human Rights. Again, they often act as if they are supreme courts and they are not. They are basically the supreme organs for interpreting the treaties. But again, as the German court recently pointed out a few weeks ago, these treaties always will be secondary to the constitution.


      In the case of Germany, the written constitution, and the basic law, and in the case of Great Britain, to the unwritten constitution and to that very large body of common law that has grown up for centuries and which, by the way has produced in my humble opinion, literally, the freest, probably the freest society in the whole world. So not much broken there that needed to be fixed and going forward, it's a good paradigm to look back on and build on.


Prof. John O. McGinnis:  Well, I might, before we go to questions, ask one thing to etch out a little more, at least to me, a little more clearly in my mind, the differences between the opinion that the British court was right in denying the -- Boris Johnson and the right to -- or really the Queen acting under Boris Johnson's advice to write the prorogue Parliament, Maimon to you, was that wrong? And I think, Alberto, thinks it may have been pointed, a right decision? And I think some for some of our listeners who are not familiar with the Supreme Court of the U.K. being the concept of their unwritten constitution, I'd be interested in hearing just a word or two about why you think that decision was wrong or right.


Prof. Maimon Schwarzschild:  Maimon here. Well, there were actually two decisions. One was about prorogation and one was about when the new Parliament then returned, whether the executive cabinet, the Prime Minister, could give notice to the EU that Britain was, in fact, leaving, whether that could be done by the executive, or whether that required further act of Parliament. And the Court held that it did require a further act of Parliament, though it could be done in a one-line act of Parliament, which is the way it was done, which procedurally presented amendments and a deeper debate on the merits of staying or leaving.


      And that same decision said, but the devolved Scottish and Northern Ireland assemblies did not have a right of veto. So the Court essentially held the executive cannot proceed on its own power, even though foreign relations, otherwise in general, are in Britain as they are, at least in part, under the U.S. Constitution, a matter of executive power. So the Court adjudicated, in a sense, the balance of power between the executive and the House of Commons, the back benches of the House of Commons. That's something the Court had never done before.


      At the same time, it adjudicated the devolved of Scotland and Northern Ireland, essentially, don’t have veto on leaving, which they had claimed before the Court that they do, the Scottish government and the Northern Ireland government. So these were, in a sense, three big decisions by the Court. Prorogation has always been just routine at the end of a parliamentary session. And it has been provided for by the executive. The executive, the cabinet basically informs Parliament that it's going to be prorogued.


      The situation was really unique at the end of 2019 because unlike a functioning two-party system that had prevailed in Britain through most of the 20th century, at that point, at the end of last year, Parliament was completely fragmented. There was no effective majority. There was a nominal, a very tiny two or three member conservative majority, but it was split between remainers for conservatives, internally, were split between remainers and leavers. So there was no unified conservative majority. And it's actual numerical majority was tiny.


      And then you had, instead of one major opposition, you had a very, very split opposition between the Labour Party, the Scottish Nationalists, the Liberal Democrats, most of whom were remainers. So the kind of paradox was that Britain had voted in the referendum by the largest vote that had ever taken place in Britain. Just the number of voters was larger than there had ever been in a general election or in a referendum before in any election, in any forum. And there was a vote by just about 52 percent to 48 to leave the European Union.


      But the members of Parliament were, undoubtedly, a majority were in favor of remaining. So you had a divergence between the parliamentary opinion and national opinion. And the prorogation question, then arose, basically the executive, Johnson, when he came in said, let's prorogue and have an election. And there was a move in Parliament, essentially, to take over executive power from the executive and have it run by the back benches of Parliament. It wasn't going to work because those back benches were, themselves, fragmented, even among the remainers. They were at each other's throats, among other things, about who was going to lead. And they represented different interests and different regions of the U.K. and they were unable to coalesce, even though there was that majority to remain. And you had the further paradox that that majority to remain was really in no position to defy a referendum, which had voted to leave.


      So for the Court to step in and say, well prorogation is illegal. Oh, and by the way, you have to go back to Parliament before you can notify the European Union formally that you're leaving, that was accumulated power for the supreme court and for the judiciary that had never been exercised before in Britain, and which in the view of a lot of people, including mine for what it's worth, was contrary to the unwritten but fundamental British constitution, which limits the role of the courts in political matters and ultimately leaves fundamental political decisions to the elected -- to the government, which is the executive and the Parliament, themselves in a kind of tug of war. But they've got to work that out for themselves.


Prof. John O. McGinnis:  So maybe we could, then, ask Alberto to comment on that.


Prof. Alberto R. Coll:  John, I think it was a very close call for the Court. It could have gone either way. I mean, they could have gone the way that Maimon suggested. But the interesting thing is this is a unanimous opinion by the Court. So I think the Court, rightly or wrongly, and you could make the argument that it was wrongly, the Court saw itself at a historic juncture. They felt that the issue of leaving Europe had been an issue that had ultimately been sanctioned by Parliament, through parliamentary legislation. And that, therefore, ultimately, you needed a parliamentary vote to notify Europe that Britain was leaving. I mean, that was the Court's reading of it. Again, you can disagree with it. It's a very legitimate argument to disagree with it. But you could see where they were coming from, in terms of saying, look this is not something that the executive should do. This is not a regular foreign policy question. By now, it's also become a question of domestic policy, domestic law, and therefore, Parliament should have a voice in this. So that was their rationale there.


      And then with regards to the issue of prorogation, again, I think that you could argue, as Maimon did, that the Court really stepped into a political decision. The question was, given the particular context at that time, whether the executive was overreaching. In other words, how far can you go in prorogue in Parliament in order to short circuit parliamentary deliberations, given the fact that everything was coming down to the wire here. It's not as if you had two years to debate these issues and to make these decisions. Everything was coming down to wire. And again, the Court, rightly or wrongly—again you could make the argument that wrongly—felt that the executive was overreaching and trying to short circuit parliamentary procedures and silence the voice of Parliament.


      So again, what's interesting is, it was a unanimous decision. I think the way forward for the government now, as should be in the near future after the COVID emergency gets pushed to the background of it, is to pass an act that specifies and circumscribes the powers of the Court much more precisely. I think that's a must. And unless Boris Johnson uses his rather commanding majority to do this, we are storing up trouble for the future.


Prof. Maimon Schwarzschild:  I actually think -- I think that makes an extremely good point. And I basically agree with all of that. One of the ironies is that the people of interest and the individuals who are bringing these cases to the Court, both about prorogation and about so-called prerogative power. In other words, the executive power or not, [inaudible 00:28:15] to proceed on a foreign policy basis to notify without an act of parliament. But both of those cases were brought by passionate remainers. And what they clearly hoped is that the Court, somehow, would prevent Britain from leaving the EU at all, or would prevent it from leaving, other than in name. That was the goal of the parties bringing the lawsuits. The Court did nothing for them.


      The Court, which indeed did rule unanimously, as Alberto rightly says, what the Court ruled was that, we the Court have the power to tell the government what to do about some of these issues, but we're not going to -- a little bit like Marbury v. Madison, we're not going to rule against the government on the substance of the Brexit decision. Quite the contrary. We are going to tell Scotland and Northern Ireland, you don't have a veto on this, and we will tell the government, yes you have to go to Parliament. So you've got to follow our instructions. But if you go to Parliament, you can have a one-line bill simply saying we authorize the executive to notify that we're leaving the European Union, which is exactly then what Parliament did.


      So the remainers were, in a sense, left empty-handed, frustrated, by these decisions. But the Court, unanimously, asserted its own power and did it in that sort of Marbury v. Madison way in which the Court said, we have judicial review power, but no Marbury doesn't get his judgeship because he sought a mandamus and that's unconstitutional. So in the short run, at least, Jefferson wins, but in the long run, we the Court win. And that's a little bit what happened here.


Prof. Alberto R. Coll:  Yes. And I think this is why I think the courts -- I mean if we want to preserve, if the British people and the Conservative party want to preserve the weight of the unwritten constitution and of common law, they have to go to Parliament with their commanding majority and write some legislation that will kind of clip the Court's wings in this sense that you're referring to, and specify much more precisely what the Court cannot do.


Prof. Maimon Schwarzschild:  I think that's right. And in a sense, there's already an important move in that direction. The Withdrawal Announcement Bill, the WAB, the Withdrawal Agreement Bill, has a provision for the executive, for the cabinet, for the ministers to permit the lower courts to diverge in their interpretation of European law from the rulings of the European Court of Justice.


      A little background on that, under the EU, the common market which eventually became the EU, there is a European Court of Justice, which interprets European law. European law was massively imported into British law. It's hard to estimate, exactly -- the criteria for estimating it are themselves controversial. But something like 50 percent, 60 percent, maybe 70 percent of all British law, by the end of the 20th century, beginning of the 21st century, came from Brussels, came from European law. So a massive amount of British law was really European dictated. And that law, under the European Union Treaty, had to be applied domestically, and was subject to interpretation by the European Court of Justice and the British courts, and member states courts were required to follow those interpretations.


      Now that Britain is leaving the EU, in order not to have an enormous black hole in the legal system, the idea is that all of that European law is now going to be incorporated into British law, as of the time of leaving, and then will be subject to change and to divergence over time. But in the meantime, how does all of that law get applied by the courts?


      Until now, the idea has been, well, the Supreme Court can diverge from European Court interpretations, but the lower courts must not. At least for now. Under this new bill, which is before Parliament, as we speak, the ministers will be able to free the lower courts, also to diverge from European interpretation of its own law. So that's a small step, perhaps, but its -- even it is a very controversial step in the direction of what I think Alberto is rightly urging. Namely, to constrain and legislate. In other words, to claw back for the elected Parliament, the policy making power that would otherwise be drifting into the hands of the courts.


Prof. John O. McGinnis:  Well Alberto, would you say a few words and then we'll go to questions?


Prof. Alberto R. Coll:  Yes. Absolutely. Another issue that you could see looming ahead is also the role of the European Court of Human Rights. Again, this is another super national court. Britain is, of course, a party and will remain a party to the European Convention on Human Rights. And that Convention is interpreted by a court in Strasbourg and sometimes the decisions of that court have pointed out discrepancies between British practices or British statutes, and the treaty obligations, as interpreted by the European Court of Human Rights.


      So I think you will be looking again, over time, at a gradual reexamination. As a matter of fact, even today, and even for the past few decades, the British Law Lords were always free to simply make what is known as a declaration of incompatibility. In other words, if a particular parliamentary provision was deemed by the European Court of Human Rights to be in violation of the treaty, the treaty of the European Convention of Human Rights, the British Law Lords simply could note well that the legislation by Parliament is incompatible.


      Now they did not strike it down. This is the significant thing. So they never would have thought of striking it down. They would simply say, it is incompatible and ultimately it is for Parliament to decide whether to revise the statute so as to bring it into compliance with the decision by the European Court of Human Rights, or to leave it alone. And of course, you could see many British governments, especially labor governments, using the decisions of the European Court of Human Rights, to pressure Parliament and to get a parliamentary majority in favor of revising the statutes so as to comply with the European Court of Human Rights decision.


      But you're going to see some push back, also, on this issue and all the way, also, on a number of issues related to rulings of the European Court of Justice that also have intruded into the area of human rights. So a very, very large push-back, I think, against these super national institutions, traditional institutions, with the belief that, ultimately, the Parliament, the British Parliament has to have the last word of these issues.


Prof. Maimon Schwarzschild:  That's right. And the huge difference between the European Convention on Human Rights, which indeed, Britain still remains a member of, is that it doesn't provide a basis for the courts to exercise judicial review in the American sense of striking down Parliament, domestic legislation, whereas the EU treaties did. So under the EU treaty, including the Charter of Fundamental Rights, which itself incorporated the European Convention on Human Rights, the Court did have the power and the obligation to disapply, as the Europeans put it—in other words, to strike down in the American judicial review sense—inconsistent acts of Parliament. That power is now gone. And the Convention on Human Rights remains, but all the Court can do is to say, well an act of Parliament is incompatible with that, so you should think again. But if Parliament and the government in Parliament, says well, we thought again, but we want to do what we've done, even if it's incompatible with Convention, the courts are no longer in a position to overrule that. Which they were, under the EU treaties.


Prof. Alberto R. Coll:  Exactly.  Exactly.


Prof. John O. McGinnis:  So maybe now we would go to questions.


Prof. Alberto R. Coll:  Go for it, John.




Greg Walsh:  We will now go to the first question.


Caller 1:  Hi. [Inaudible 00:38:17] involve a criminal law professor. I know that in 2013, the European courts struck down Britain, what they call whole life, or we would call life without parole sentences in the Bendtner case. And then a few years later, it reviewed another case which didn't seem all that different from Bendtner, but they permitted it which also seemed that there was some, I guess, Brexit related, how much independence to allow the Brits. And now that Brexit's gone through since the possibility of life without parole sentence seems to enjoy the support of close to 90 percent of people, not just in the U.K., but throughout Europe, do you see the U.K. moving to impose and legalize such sentencing.


Prof. Maimon Schwarzschild:  The question broke up a little bit so it wasn't -- I'm not sure I could hear the wind up of the question. It is -- I mean I can say a word or two about it. What is known in England as whole-life sentencing, and in the United States as life without parole or sometimes abbreviated, LWOP, the European Court did strike that down consistently with its -- with the strong European view, the recent European view, historically, against the death penalty. The death penalty prevailed in Europe. The last guillotining in France was in the mid-1960's. The last hanging in England, at about the same time.


      Since then, there's been a vehement turn in Europe against the death penalty, in part, because Europeans associated with the United States and there's sort of a feeling of moral superiority. The American cowboys have this and we're civilized and we don't do that. And to some extent, the feeling against whole-life imprisonment, or LWOP is informed by much the same feeling. And the European Court has been moving, and as the caller rightly points out, ruled in this past decade that it violates human rights, both under the EU treaty, and under the European Convention on Human Rights, so two separate treaties. So I'm not sure if that's responsive, but I hope so.


Caller 1:  Am I still on?


Prof. Maimon Schwarzschild:  Yes.


Caller 1:  Okay.  Because it's true that the attitudes of the European judiciary and many elected officials are very hostile to both the death penalty and LWOP. But there's also significant evidence and public opinion surveys that the general population is far more supportive, especially of LWOP as opposed to death penalty. I mean, I've seen surveys that say that at least in some cases, LWOP should be available and that's supported by almost [inaudible 00:42:20] throughout Europe. So it really has been a top-down push to limit criminal punishment. And my question is, since the U.K, which has more of a democratic or populous approach to lawmaking, perhaps than the EU, and given the support for stricter sentencing, do you think [inaudible 00:41:41] impose whole-life as an authorized sentence, if not the death penalty?


Prof. Maimon Schwarzschild:  I would say don't hold your breath. It's absolutely true, and President Macron has acknowledged it explicitly in France and various others in government have said the same thing. If you had a referendum about this, or if you took a poll about this, there would be a strong majorities, even for the death penalty and certainly for whole-life sentences for really extreme crimes. But the metropolitan upper middle-class doesn't go for it. And the establishment opinion is much more in line with the European Court about this than it is with popular views. And I would anticipate that the sort of establishment view is going to continue to prevail about this. And that the more popular public view is extremely unlikely to prevail.


Prof. Alberto R. Coll:  I mean, that in itself, is contingent on what happens in the future in some European countries. For example, in Eastern Europe, we see in countries, a big push-back against these top-down pretentions. And certainly in Italy and Spain, you see that as well. So it could change. But definitely in Britain, now with Brexit, I think that the whole door is wide open.


Greg Walsh:  Okay let's go to the next question.


Tom Willis (sp):  Hi. Tom Willis. I'm calling from Rotterdam, The Netherlands. The good professors, I think, left out a key step in what occurred late last year, which prompted the Supreme Court ruling. And some would think of this as enemy action, the activists by the Speaker of the House.


      I did want to correct one of the professors misspoke. The Conservatives never did have a majority in the last Parliament. They ran a minority government with confidence and supply agreement with the Democratic Unionists, which is a small party solely in Northern Ireland.


Prof. Maimon Schwarzschild:  That's right.  That's correct.


Tom Willis:  Which is a key fact, because they essentially dropped their confidence of the main government, which Johnson took over, which allowed essentially a majority the minority. A coalition of all the opposition parties, plus a strip of remainers in the Conservative party, were through -- I don't know how you would call it. But creative actions of the Speaker of the House were allowed to take control of the order paper.


      Typically speaking, in a Parliament, in a West Minster system, the government controls the agenda. But the Speaker, through a very novel method, was able to hand the agenda to this motley group of opposition. And what was worse, was they were passing laws that were instructing the executive to take action. In one case, they instructed the Prime Minister to extend the deadline from October 31st to December 31st. Something which he explicitly did not want to do.


      So there was already a tremendous stress on the British constitution before the Supreme Court got involved. It's also worth it to noting that Johnson prorogued the Parliament for five weeks, which is traditionally much longer than is typical for this sort of prorogation. It has been prorogued for longer, but not just to flip the legislative clock. He was -- it seemed clear that he was trying to run out the clock. He called for prorogation the second week of September of 2019. They were due to leave the EU on the 31st of October. So he was trying to narrow the amount of time this motley crew could take control of the order paper and instruct him to stay in the EU. And I think that fed into the decision of the Supreme Court that this just wasn't -- it wasn't just that he had picked a long period of time. But he had a political animus behind him for doing this. And rightly or wrongly, I think that fed into their decision-making process. The fact that the government had a majority of negative 28, as they would say in the press, had a big effect on this judicial activism.


      The other two things that I would point out is that the --


Greg Walsh:  I'm sorry, Caller, would you mind getting to your question?


Tom Willis:  Oh, the question is, do you think because the Supreme Court is subordinate to Parliament, do you think this is even an issue now that we no longer have the same Speaker?


Prof. Maimon Schwarzschild:  Maimon here. For what it's worth, the caller is correct on all counts. Mrs. May had only a bare coalition majority and it wasn't a party majority, so she was indeed dependent on the Northern Ireland party. She was in an impossible position. And she called an election unnecessarily a year and a half, two years ago, expecting to be returned with a comfortable majority and she wasn't. And she was essentially crippled as soon as that happened. And by the end of 2019, she was in a position where in theory, with her coalition with the Northern Ireland Protestant Party, she had a bare majority. But her own Conservative party was split bitterly between remainers and leavers. So the government was hobbled, was badly crippled.


      And as the caller rightly pointed out, the Speaker, who was in a sense, a kind of ambitious showman guy and a passionate remainer, his members of his family were driving around with bumper stickers saying Bullocks to Brexit, to hell with Brexit. And with the collaboration of the Speaker, basically the back benches were trying to take over executive functions. And it was really -- that itself -- caller is quite right, quite independently of the courts, was a challenge to the unwritten constitutional separation of powers, quasi separation of powers between the executive, which sets the agenda, and Parliament, which is meant to scrutinize, but not to control that agenda.


      So all of that, it's an extraordinary history. And if the question is, well now that there's a solid majority, does that cut out the pretentions of the courts? I think the answer to that is no. The ball is now rolling and the courts have already laid a claim to a kind of quasi-American judicial review power that they never had before. I don't think they're going to give that up, readily. And the half of the country -- nearly half of the country, which voted more or less passionately for remain, and rightly sees the sociology of the judiciary as being much more sympathetic to remain and much more unsympathetic to what amount to the deplorables, there's going to be a lot of support for the idea of greater judicial power. The idea of expertise. And metropolitan expertise in government. That's not going to go away.


      So what may have been initiated by an extraordinary fragmentation and paralysis in the political branches, which is now ended because Johnson now has a solid majority, it doesn't mean that the ambitions or pretentions of the judiciary are now going to fade away.  I don't think they will.


Prof. Alberto R. Coll:  I couldn't agree with you more. And I think that this is really the best opportunity to clip the courts wings. And if the Conservative government cannot do it now, it's going to be extremely difficult to do it later. They still could do it and they could still push through that kind of legislation in the aftermath of Brexit, in the middle of these processes of change. But yeah, as you said, the court has set a precedent and it's ambitious and institutionally, it has a stake in increasing its own power. And it will do so, unless Parliament very specifically tightens it down. And that will require an act of parliamentary legislation. And it will have to be very specific. And needs to be done, I would say, in the current parliament. Not anytime later.


Prof. Maimon Schwarzschild:  I think that's right.


Greg Walsh:  I think we have time for another question before we wrap up. We'll now go to our final caller.


Caller 2:  Hi. So my questions follows up on the last one, but with the focus on Parliament rather than the courts. During the Brexit fight, there was, as has already been noted, quite a bit of independence being asserted in the House of Commons towards the government, or the executive. Do you see that continuing, in terms of how vigorous Parliament is in scrutinizing legislation and so forth? And if you could, talk a little bit about how the House of Lords works in terms of scrutinizing legislation, particularly for constitutional issues.


Prof. Maimon Schwarzschild:  Shall I have a go at it?  I think it will. The leader of the Labour opposition is a much more formidable character right now. Keir Starmer is a -- was a practicing barrister, was a successful courtroom lawyer, and is just a much more effective and much more impressive opponent for the Prime Minister than Jeremy Corbin was. And he's already -- Starmer has already proved his nettle in holding Johnson to account and besting him, Prime Minister's questions a couple of times just in this past month. In Starmer's first month as leader of the opposition.


      So you've got a more effective leader of the Labour party. You continue to have a very numerous Scottish Nationalists representation in Parliament, which is vehemently antipathetic to the government. So I think you will continue to have parliamentary scrutiny. And in a sense, the precedent -- Alberto talked about the precedent in the courts rightly, but there's also been -- Parliament itself, the House of Commons, has had that sort of experience of almost taking control, whether they were entitled to or not, almost taking control at the end of 2019. Once you've done that, you feel your oats, and you're not readily going to shrink back into any kind of disappearance, back into the wallpaper. So I think the House of Commons, if anything, has been energized by what's happened, including its opposition in the last year or so.


      And then the caller rightly points out, the House of Lords, which is unelected, unrepresentative, heavily identified with the metropolitan upper middle-class establishment, and which is antipathetic to -- just on the issues and cultural style, antipathetic to Johnson and to the people who elected him. And while in a sense, the question about the House of Lords isn't going to be whether it fades away in its opposition and in its scrutiny. The question is whether it's overreach, as it was clearly tempted to do about Brexit and to try to stop -- the vast majority of the House of Lords wanted to remain in the European Union. And if they could have, would have wanted to defy the referendum, and indeed, the House of Commons. They didn't dare do that because they knew that to do that would be to invite abolition, effectively, abolition of the House of Lords.


      The question now is whether they will scrutinize, continue to use their scrutiny power in an effective way, or whether they'll be tempted to try to actually veto the elected House of Commons and the government. Because if they do, at some point -- and they might be tempted to do that because they're so culturally out of sync with Johnson and his government. And if they do try to obstruct it beyond the point that the Commons think is tolerable, the idea of abolishing, or further really cutting back the House of Lords, which has been an idea that's been in the air since about the turn of the 20th century, 120 years ago, might actually finally come to pass.


Prof. Alberto R. Coll:  Yes, I don't think the House of Lords is going to try to do that. And precisely for the reasons that you pointed out. That they're already mindful of what happened in 1910, 1911. And their veto powers are extremely limited. And on an issue like this, I doubt that they would take the step. This is, of course, very different for our listeners. It's important that they understand that the House of Lords is nowhere like the U.S. Senate. And that on Britain's written constitution, as amended by the acts taken at the turn of the 20th century, as you pointed out, that the Lords can scrutinize, they can slow down a bit, but going further than that is highly problematic. And I would predict that they will not attempt that.


Prof. Maimon Schwarzschild:  I think that's right. I agree with that.


Prof. John O. McGinnis:  Okay.  Well I think we may have come to the end of our hour and I just want to thank our speakers for a very learned discussion of a constitutional issue far from our shores, but one I think of interest to many of our members. Thanks so much Maimon and Alberto.


Prof. Maimon Schwarzschild:  Thank you John. And thanks to The Federalist Society and to everybody who's tuned in.


Prof. Alberto R. Coll:  Thank you.


Greg Walsh:  On behalf of The Federalist Society, I want to thank our speakers for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at