Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk.

The Cherry/Miller case concluded with the significant ruling that Prime Minister Johnson’s prorogation of Parliament was unlawful. This decision, delivered unanimously, declared the prorogation legally void, effectively awakening Parliament from an illegal slumber.

This timely judgment allows for the illustration of constitutional law principles through current events. Law students will benefit from the numerous analyses and discussions surrounding this significant case.

As previously explored, the Scottish courts and the English High Court received challenges from concerned citizens and legal professionals worried about Prime Minister Johnson’s decision to prorogue Parliament for five weeks. This move was seen as problematic given the approaching Brexit deadline and the potential for a no-deal scenario. The Scottish court initially sided with the Prime Minister, considering prorogation a political issue outside its jurisdiction. Similarly, the English High Court found Gina Miller’s legal challenge inadmissible.

The prevailing legal understanding appeared to support the dismissal of these cases based on the principle of non-justiciability.

However, the Scottish Court of Session overturned the initial ruling, asserting that the Prime Minister’s actions were indeed subject to legal scrutiny. They deemed it a legal matter concerning the potential misuse of the royal prerogative.

The Supreme Court largely upheld the Court of Session’s perspective. In a rare display of unity, the eleven justices unanimously agreed that the Prime Minister acted unlawfully in advising the Queen to prorogue Parliament.

This judgment, much like Brexit itself, has sparked widespread debate among legal professionals, the public, and politicians, creating deep divisions of opinion.

The judgment is remarkable for several reasons.

Firstly, the unanimous decision by eleven prominent justices is notable. Previous cases with a similar number of justices have resulted in divided opinions. Lady Hale’s ability to unite these independent legal minds on this matter is significant.

Secondly, the judgment is exceptionally well-written, offering clarity and conciseness despite the case’s constitutional weight. Unlike the lengthy and precedent-heavy judgments from lower courts, the Supreme Court chose to focus on fundamental constitutional principles.

This concise and straightforward approach raises questions about its rationale.

The answers likely lie within the political realm.

As the Supreme Court nears its tenth anniversary, this judgment serves as a powerful demonstration of its evolving role as a Constitutional Court, capable of handling significant political matters.

Several political factors likely influenced the judgment’s structure and tone.

The unanimous decision aimed to project a clear message of legal certainty, preventing those opposed to the ruling from exploiting any dissent. This united front emphasizes the judiciary’s unified stance on this issue.

Furthermore, dismissing the Scottish Court’s decision would have jeopardized the United Kingdom’s unity. The Supreme Court navigated this by endorsing the Scottish court’s view while subtly asserting its own authority. This approach skillfully avoided complex legal disputes between England and Scotland.

The judgment’s direct and accessible style was appropriate given the global interest in the case. The justices aimed to make the law understandable to a wide audience, particularly considering the time constraints and the need for clarity beyond legal and political circles. The result is a clear and concise explanation of the UK’s constitutional foundations.

While criticisms exist, with some deeming it simplistic or politically motivated, the judgment’s defense rests on its emphasis on Parliamentary sovereignty and accountability. The court saw its intervention as necessary to restore balance within the UK’s constitutional framework, especially given the perceived failure of political accountability mechanisms. By doing so, the Supreme Court effectively upheld a key principle of the Leave campaign: returning sovereignty to Parliament.

Barnard & Peers: chapter 27

Photo credit: Pamela Ewing