Reader TTS

Many people will be dismayed by the Supreme Court’s ruling on Mr Johnson’s prorogation of Parliament. Government briefings, Twitter, right-wing tabloids will feed the anger. We are due for a

tirade along “War on the Judiciary”, People versus the Establishment lines: “Unelected”, “Undemocratic” “Meddling in our Politics”, “Constitutional Coup” and so on. It will be no use

arguing that our democracy, political stability and constitutional arrangements sometimes require a referee between executive and legislature, particularly when the executive tries to avoid

scrutiny and shows signs of becoming unaccountable. Which is of course where the law comes in. Notably, when big constitutional issues are at stake the law takes precedence over the rule of

anyone else, elected or otherwise: Prime Minister, the Crown in Parliament, the Privy Council, and Lords Spiritual and Temporal. But Mr Johnson should be permitted to treat the sovereignty

of parliament with contempt, will come the reply, because politicians have made a contemptible and unholy mess of things and he needs to get things done and dusted to honour the Referendum

result. It is rather like saying, after a football team has missed several goals, that the other captain can henceforth ignore the off-side rule, and if progress in the opponent’s half is

slow, take over as referee to ensure victory for his team. The Supreme Court did not mince its words. The impact of Johnson’s lengthy five week prorogation “on the fundamentals of democracy

was extreme”. The exercise of the core parliamentary function, to call the executive to account, a principle of parliamentary sovereignty and the basis of our democracy, was being impeded

and no adequate explanation of this obstruction had been provided. As I understand it, as a result, the Supreme Court was therefore obliged to define the limits to the prerogative powers

concerning prorogation exercised by the Crown on the advice of the Prime Minister through the Privy Council, and concluded that the Prime Minister had exceeded them. The prerogative powers

over proroguing were not before that clearly defined. The Supreme Court made law in the Miller and Cherry cases by their – unanimous – judgement. That is how law in this country develops and

that is what the Court does. It defined the nature and limits of one such power and drew the conclusion that the Prime Minister’s advice on prorogation was unlawful – he had provided no

evidence that a lengthy, prorogation was necessary while parliamentary oversight of government business was essential at a critical moment when constitutional change loomed on 31 October.

The resultant Order in Council proroguing Parliament was null and void. Parliament was not prorogued. I doubt if Tony Blair and Lord Falconer when they legislated for a UK Supreme Court in

the 2005 Constitutional Reform Act (established on 1 October 2009) foresaw that fourteen years later the Supreme Court would be involved in an historic juridical intervention in

constitutional conventions. Nor that a Prime Minister would be pulled up for unlawful conduct in the process. That’s serendipity for you. In hindsight, the judgement seems an entirely

sensible and reasonable conclusion to a complex problem. The court has striven to make it comprehensible to the public. But this will sadly cut no ice in a divided society in which emotion

takes precedence over the kind of rational argument proposed by the philosopher Jurgen Habermas’, an ideal of dialogue and conversation, which court proceedings at this level seem to model.

As Johnson wishes, the Brexit divide will determine how people view this historic moment in the working of our judiciary and democracy. That it not the fault of the Supreme Court which has

provided comforting proof that rational discourse has not entirely deserted this disunited kingdom.