How does the UK Supreme Court operate and what is it going to decide on prorogation?

The Supreme Court is a relatively new institution in the British constitutional system and few people know much about it. In my short guide to the British political system, I have provided a brief explanation of the Supreme Court here.

The court really has two decisions to make.

First, is the issue of prorogation “justiciable”? That is, is prorogation simply a political matter, in which case it would not be proper for the court to opine. Or is it a legal matter, in which case the court is entitled to take a view.

Second, if the matter is “justiciable”, has the Government – really the Prime Minister – used its prorogative powers improperly or unreasonably, that is in a matter intended to prevent Parliament from doing its constitutional duty of holding the Government to account.

An English court has ruled that the matter is not “justiciable” and so it declined to judge the Government’s action. However, a Scottish court found the matter “justiciable” and ruled that Government had behaved illegally. The Supreme Court is considering an appeal against both decisions from the parties who lost the original cases.

The Supreme Court is due to sit for three days, hearing the arguments and considering the evidence, and it is unlikely to reach a decision before Thursday or even later.

In a sense, the decision is academic because the Government has already failed in what its opponents judge was the intention of the extended propagation – that is, to stop Parliament blocking a no-deal Brexit. In the short time that it had before prorogation, Parliament rushed through an Act that technically should prevent a no-deal Brexit unless the Government can find some obscure way round this blockage.

In another sense, the decision is fundamental. In the short term, if the Goverment loses the case, then it might have to recall Parliament. On the other hand, if the Government wins the case, it might be emboldened to prorogate Parliament again before trying to push through Brexit. In the medium and long term, the decision of the Court will be a vital precedent on the scope of the power of prorogation.

I’m no lawyer, but I’m going to take a guess that the Supreme Court will decide that prorogation is a political and not a legal matter and will decline to express a view on the Government’s action. I wish it were otherwise, but we shall soon see.


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