The Supreme Court has spoken. The effect of the Prime Minister’s decision to prorogue Parliament was to frustrate Parliament from carrying out its constitutional functions as a legislature and holding the Government to account.
That made the Prime Minister’s decision unlawful and it is as if the prorogation, or suspension of Parliament, never happened. Parliament can now sit.
This is a remarkable judgment, all the more so when, against all predictions, the eleven justices were unanimous.
Read more: Historic court defeat for Boris Johnson
There will inevitably be political reaction to it. But it is also important to bear in mind what the Supreme Court has and has not done.
First, the court prudently side-stepped the question of whether the Prime Minister used the power to prorogue for an improper purpose.
All the court said – all it needed to say – was that the effect of the Prime Minister’s decision was to frustrate Parliament’s supervisory function whilst the country decides when and how to leave the European Union.
Second, through its President, Lady Hale, the court has been at pains to point out that this case is not about Brexit. That will be for Parliament when it returns to work, as it surely must.
Read more: House of Commons preparing to resume tomorrow says John Bercow
Third, the Supreme Court has decided this case on established public-law principles.
It has, rightly, put aside some of the rhetoric that has been deployed in this case. That was never going to work before the Supreme Court, which has long favoured calm, measured advocacy.
Instead, the Supreme Court applied those well-established principles, looked at the evidence before it and decided what the effect of the Prime Minister’s decision was on Parliament and on the Constitution.
Once it did that, the Supreme Court’s duty to find against the Government was clear.
It was once said that we pay the Supreme Court to decide the hard cases. The justices have done so: calmly, firmly and unanimously.
Paul Harvey is an advocate and barrister specialising in public law
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.
That is invaluable.
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules hereLast Updated:
Report this comment Cancel