The most important constitutional case in living memory

Readers should hardly be surprised that I am devoting a blog post today to what by any measure is a more important judicial ruling than any that has been delivered for as long as anyone can remember. Today’s judgment of the Supreme Court is indeed momentous.

The Supreme Court had to address two main issues – first, whether the prorogation of parliament and the procedures leading to that prorogation are justiciable at all, and secondly (if that question was answered in the affirmative) whether these procedures, in the form and manner in which they were followed, were in practice unlawful. In the event of the Court finding that these procedures were vitiated by illegality, a third issue to be addressed was the precise legal effect of that unlawful conduct, and what relief the Court should grant in order to remedy such illegality.

The Court delivered a unanimous decision of all 11 Justices of the Supreme Court. The decision could not have been clearer. They held that this issue is undoubtedly justiciable (and has been since at least 1611). The prorogation was not ‘a proceeding in parliament’, and was not therefore immune from judicial review under the Bill of Rights. They also held that not only was the procedure leading to prorogation unlawful, but this also rendered the prorogation itself unlawful. They therefore upheld the declaration of the Inner House of the Court of Session that both the Order in Council and the prorogation itself was “void and of no effect”. Parliament has not therefore been prorogued, and it is open to the Speaker and the Lord Speaker to make immediate arrangements to resume the sitting of both Houses (just as I suggested in a previous post a few days ago).

It follows (although the Court did not have to go on to say this) that any further attempt by the Prime Minister to prorogue parliament would be equally unlawful if it has the effect of preventing parliament from continuing to hold the executive to account and to transact urgent business in the extraordinary circumstances facing the country in the next few weeks. It was the effect of the prorogation, rather than its motivation, that led to the prorogation being quashed, and this makes it much more difficult for a further prorogation to be lawfully concocted. It may, in fact, be necessary to cancel or delay the Queen’s Speech on 14 October. In any event, the Court made it clear that a prorogation for this purpose would need to be no longer than four to six days.

Most of the noise surrounding the current litigation, much of it from ill-informed and ill-disposed partisans, has entirely missed the true significance and importance of this case. Although ‘Brexit’ was the immediate trigger for this litigation, today’s judgment of the Supreme Court was not actually directed to that controversy. As the President of the Supreme Court, Lady Hale, has emphasised, this judgment has absolutely no effect on how, when or whether the UK leaves the European Union. The two appeals before the Court on this occasion were solely focused on the relationship between parliament and the executive, and the role of the courts in adjudicating on this relationship and on the exercise of the purported powers of the executive if or when they impinge on the sovereignty of parliament and its constitutional role.

Let us be absolutely clear. In this country we adhere strongly to the Rule of Law. As Lord Denning put it with characteristic clarity: - “Be you never so high, the law is above you.” There is no person and no institution (even the Prime Minister purporting to exercise the royal prerogative) who is immune from judicial supervision. Contrary to the submissions of Lord Keen to the Supreme Court, there is nothing that is ‘forbidden territory’ to the courts. The judges of our superior courts are the bulwark of our liberty, both individually and collectively, and the guardians of our constitution.

It is therefore essential that the role of the courts in adjudicating on such matters is recognised and acknowledged, and that the judgments of the courts are treated with respect and obeyed. There must be no repetition of the disgraceful conduct of one newspaper in calling the judges “Enemies of the People” following a judgment in previous litigation on similarly important constitutional issues. The then editor of that newspaper was lucky not to have been hauled before the court for gross contempt, and made to deliver a grovelling apology on pain of immediate incarceration until or unless his newspaper’s egregious contempt was purged.

ADDENDUM The Speaker of the Commons, John Bercow, has confirmed that the Commons will resume its sitting at 11.30 a.m. tomorrow morning (Wednesday). Prime Minister's questions will not be held tomorrow, as they usually are on a Wednesday, but Bercow made it clear that there will be the opportunity tomorrow for MPs to submit urgent questions to ministers, for ministerial statements to be made to the House and for emergency debates to be held under Standing Order 24.

© MARTIN H GOODALL