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.

Perhaps these senior lawyers may take some consolation in the inevitable nature of their flagellation in the court of public opinion; something that goes with the territory. It was, in fact, inevitable that the Supreme Court was going to be involved again in the process, and rightly so. As with the question of parliament’s role in activating Article 50 in 2016-17, in the absence of a written constitution, and in a world where tradition and convention can be abused by a politician in a determined enough mood, the independent judiciary has to act as a constitutional check and balance. They have to do so, moreover, without having such a role in framing constitutional rulings determined with the precision of, say, the American or German constitutions, where judges getting “involved in politics” is perfectly normal.

Britain’s supreme judges, to a fair degree, have to make it up as they go along, with very few precedents to go on. Even the 1948 and 1997 examples of a “political” prorogation cannot be said to be defining, given the different circumstances of the time; and even if Clement Attlee and John Major, respectively, “got away with it”, they too may have acted unlawfully in their own times – though there was no legal challenge such as the one, ironically, that Sir John Major is now taking part in.

In making this ruling, the Supreme Court will be making a new constitutional convention, if not law. It is a momentous choice, if, for example, they decide that the Johnson administration’s actions were perfectly OK, in the sense that prorogations are “political” matters and not justiciable (in English or Scottish law) then the door is wide open for any premier, including the current one, to suspend parliament for far longer, should they feel the need. If the courts absent themselves from such arguments, then the safeguards available to the remaining players in the game – the monarch and the Commons – have no legal standing.

Indefinite prorogation, or prorogation for weeks, months or years on end is not something that the Supreme Court could or should sanction, sanctify and make legal – that is not its role either. 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, and the prorogation procedure is, or should be, only an administrative feature of the governance of the country, and is not to be “weaponised” in the way it has been. The fact that the prorogation only extended the recess by a few days is not relevant when those few days are so vital for parliament to play its full constitutional role in scrutiny and making legislation, against a deadline. The British constitution does not exist to allow governments to rule by decree. No court can facilitate that.