The circumstances were highly unusual but the Court was upholding a principle as fundamental as they comeby Sionaidh Douglas-Scott / September 24, 2019 / Leave a comment
Today’s Supreme Court judgment in the Miller and Cherry appeals, finding the prime minister’s advice to prorogue parliament unlawful, has already been hailed as extraordinary, as well as one of the most significant constitutional law judgments ever given. It has also attracted warnings of judicial overreach.
However, as Lady Hale made clear at very outset of the judgment, this was a “one-off.” As she stated, “The question arises in circumstances which have never arisen before and are unlikely to arise again.” (One hopes!) The judgment was unanimous. That is very significant. Contrary to earlier speculation, there were no dissents. It was unambiguous and unqualified, making it a very strong holding indeed. Indeed, it was more than a rebuke or defeat, and nearer to calamity for the government.
Three crucial points need to be stressed. First, the judgment upholds parliamentary sovereignty against an overbearing executive, by the Court’s strict and careful application of legal principles. For this reason, despite alarm from some quarters, the judgment cannot be said to represent a deviation from the central tenets of the constitution. To the contrary, it upholds them. While a remarkable ruling, it is in this and other respects an orthodox one.
Second, the case cannot be dismissed as an attempt to “thwart Brexit”—and certainly not by the government, which had argued its whole case on the basis that proroguing parliament had nothing to do with Brexit but was to prepare for a Queen’s Speech. Third, by dismissing the appeal against the Scottish Court of Session ruling, and finding Boris Johnson’s advice to prorogue both justiciable and unlawful, the Court avoided any discord, or tension between nations of the union.
The full judgment is also handed down in the names of both Lady Hale (President) and Lord Reed (the Vice President, and future Supreme Court President). As Lord Reed was in the minority in dissenting in Miller 1 (on the necessity of obtaining parliamentary consent before triggering Article 50) and had, according to some, appeared more sympathetic to the government case, his listing as co-author of the judgment seems significant.
Legal cases do not always make easy reading. But this judgment is very clear, setting out the issues methodically, in four stages. I will just summarise these main points…