It is not an easy choice – but the Supreme Court must rule in favour of parliamentary democracy

Editorial: Common sense and the long tradition of parliamentary government since the 17th century require that parliament should be able to sit as and when it wishes

SNP MP Joanna Cherry at the Supreme Court on Tuesday during the prorogation hearing (Reuters)

As they consider the question of the lawfulness, or otherwise, of Boris Johnson’s advice to the Queen to prorogue parliament, some disturbing thoughts must be running through the minds of the 11 distinguished judges who will deliver their historic ruling in the next few days. They would be forgiven for thinking that they will be damned if they rule that the prime minister’s actions were unlawful (either under English or Scottish law, or both); and they will be equally damned if they decide that Mr Johnson was within his rights. Although such thoughts of consequence are supposed to be hermetically shut out of the legal brain, they are all human. In short, they run the risk of upsetting either one side or the other.

Brexiteers, populist politicians and much of the press would attack them as “enemies of the people” if they rule against the government. If they instead rule in its favour, they risk the ire of the other lobbies – who will equally call them the enemies of the people. In particular, the spectacle of an “English” court in London overruling an Edinburgh Court of Session ruling would make the Supreme Court, in the eyes of Scottish nationalists, enemies of the Scottish people. The judges could, other things being equal, hasten the secession of Scotland from the UK; or else hasten the exit of the UK from the EU.

They can’t win.