Established in 2009 as part of New Labour’s constitutional reform package, the UK Supreme Court was created to instigate a separation of powers by ensuring the judiciary and the legislature was not intermixed via the House of Lords. It was, however, never meant to step in on explicitly political matters that did not fall under human rights, secondary legislation or trivial matters that may serve as a grey area. In its latest ruling on prorogation, the court has overstepped its bounds by wading into politics which shows the flaws in the idea of having a Supreme Court in the first place.
Parliamentary sovereignty is the only thing that matters when it comes to the process by which our system functions. Parliament’s will is absolute, and thus far Parliament has not passed a law to say that the Prime Minister’s action of prorogation would be unlawful. In fact, they have not legislated that the Prime Minister must have a sole reason for prorogation and so it remains solely an executive power that is granted by Her Majesty on request. The Supreme Court has no right to say that Parliament must sit again as they are essentially setting a future precedent that only Parliament should have the right to set.
I understand perfectly well the concerns regarding this prorogation, but unless it is legislated to restrict its power and reach then the Prime Minister has every right to suspend Parliament for that given period regardless of the reasons he gave Her Majesty or others. If, rightfully so, reasons should be made clear for suspension then that is a matter for Parliament not the judiciary.
As for the Supreme Court itself, its ruling has shown the flaws in its creation. It simultaneously seeks to distinguish itself from the US Supreme Court by not overruling Parliamentary sovereignty, yet it still binds the hands of the Prime Minister or Parliament when it sees fit, therefore it is becoming very much like a political judiciary. We must never forget the roots that underpin our system and – to quote David Starkey – we must never mistake ‘the rule of law for the rule of lawyers’.
Perhaps to some it would be no surprise that the court has ruled in such a fashion to derail Britain’s exit from the European Union. We can sit and pretend that their ruling was merely on the executive power of prorogation in the same way others pontificate that Boris suspended Parliament to make Brexit easier to get through. However, it is clear, as was the case with the 2017 Gina Miller case, that our Supreme Court has its bias and it’s been exposed with this ruling. Perhaps it’s not a surprise, after all, Lord Mance was once a European lawyer.
Curt jabs aside, it is clear to me that the Supreme Court must be careful in the waters it treads, and Parliament should remain the sole head in political matters. As for the future: it looks uncertain but isn’t that always the way with Brexit?
Photo by bloomsberries on Flickr.