The essence of the judicial system is to be wise after the event even if there is usually a certain effort to imply that judges knew all along.
In our current constitutional crisis it will be difficult to imply prior knowledge of any sort as otherwise there would be no crisis. Yet surely the Supreme Court cannot fail to be aware that if the executive can shut down the legislature at will, we have no democracy.
This is from the ‘Sunday Times’:
Previously, English and Northern Irish judges have considered that the prorogation is a political matter not within their remit (not ‘justiciable’, in the jargon) which personally, I consider ludicrous. I’m delighted to discover that, albeit in more measured academic language, I’m not alone. Additionally perhaps the idea that the government is even vaguely considering proroguing for a second time will concentrate minds.
I cannot fathom why explicitly shutting down the legislature for anything other than the shortest time possible, and with good reason, should ever be considered anything other than contrary to the Rule of Law, which, lest we forget, is the foundational tenet of our constitutional monarchy as well as our representative democracy.
It should not be difficult. In this case the Supreme Court has only to be wise after the event to put right an unfairness that most of us could see coming a mile off. Their ‘difficulty’ extends simply to the ability to find the ‘prior’ legal distinction for it’s illegality. That it is wrong surely noone doubts.
There may be grounds for gentle optimism as Lord Carnwath of the Supreme Court has already held:
It is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review. This proposition should be seen … as a natural application of the constitutional principle of the rule of law … and as an essential counterpart to the power of Parliament to make law.
Lord Carnwath will be sitting on the day (Tuesday at 10.30) and I’m told that the livestream ought to be well worth watching.
If, by some woeful error, the Supreme Court does not manage to consider prorogation ‘justiciable’, then as soon as Parliament returns it, itself, must make every effort to legislate for the power of prorogation to be enacted only with prior Parliamentary consent.
This, I’d suggest, is just as important as Brexit, where, it must not be forgotten, the electorate was supposed to be taking back control.
The electorate seems now to discover that they originally ceded such control not to Brussels, but to the tyranny of a home government that doesn’t even have a parliamentary majority, which exercises unfettered ‘divine’ monarchical power.