The Supreme Court was only created in 2009. For centuries we managed without one. I do not claim to be an objective observer: I believe that the enterprise was misconceived, particularly when it comes to political questions.
The USA needs a supreme court because it has a legal, written constitution. This includes a defined separation of powers between the executive branch (the President) and the legislature (the Congress).
The UK however, has a completely different settlement. Our constitution is predominantly political and the executive (government ministers) themselves are members of Parliament just like any other member of the legislature. The executive and legislature don’t enjoy separate electoral mandates, and their functions are all mixed-up together.
The Supreme court is guilty of grabbing power that has hitherto been reserved to Parliament: the power to deliberate over what happens in Parliament. In doing so, it breaches a much older piece of constitutional legislation, the Bill of Rights 1689, which denies any court the right to question proceedings in Parliament.
The new principle that the Court has established is that it has the power to determine whether a prorogation is lawful, on the basis of judging it on a test of reasonableness. That test will include the length of the prorogation, the ‘temperature’ of the political climate (how pressing the great issues of the day are), and the legislation that would be lost if Parliament is prorogued.
All of these are ‘proceedings in Parliament’.
The court has intruded into our elected Parliament’s business.
Parliament had notice that the Government intended to prorogue it. It was open to the Commons, assisted by Mr Speaker, to debate motions against prorogation, or to stop it dead by carrying a motion of no confidence.
It chose to do neither.
The Court’s intrusion is indeed a coup against the proper role of Parliament.
The President of the Court, Lady Hale, insists that the ruling has nothing to do with BREXIT, which is a measure of her naiveite. It is all about BREXIT. Their own judgement finds that, despite what the PM said about a new Queen’s Speech, he really sought to avoid scrutiny -over BREXIT.
The Court has stepped right into our greatest political row for decades: Parliament’s unwillingness to allow the Government to deliver BREXIT in accordance with the decision of the referendum.
In vain the 11 justices insist that theirs is a legal and not a political judgement, but they have intruded into the greatest political issue of our time.
They are guilty as charged.