Michael Keating reflects on today's ruling, arguing that 'the Supreme Court at last start to act like a constitutional court'
The Supreme Court insists that this is a ‘one-off’ judgment in circumstances which have never risen before and are unlikely ever to rise again. That is consistent with the judicial practice of seeking to settle cases on narrow grounds, keeping out of politics and sticking to the letter of the law.
In practice, it does have much wider implications. The Court accepts the doctrine of the royal prerogative but insists that it must be limited by law. It agrees that government is accountable primarily to Parliament but draws the conclusion that it therefore must allow Parliament to sit. If future governments want to use prorogation they will need to give good reasons. Since the monarch these days cannot decide herself on whether prorogation is justified, the courts will do so instead.
The UK constitution has historically concentrated authority at the heart of Government. Prerogative powers are exercised effectively by ministers. Party discipline and majority government ensures that Parliament is normally under the thumb of Government. The courts try to keep out of politics. Yet, as the old party system fragments and hung parliaments become more common, the days when the House of Commons acted as a rubber stamp may be over. Now the Supreme Court has resurrected the doctrine of ‘separation of powers’, meaning a balance between the executive and legislature enforced, if necessary, by the courts.
Finally, the Court has stated that the United Kingdom does, contrary to some opinion, have a Constitution (with a capital C). This includes not just written law but common law, conventions and practices. These in turn are interpreted according to broad principles such as the House of Commons as the democratically elected representatives of the people. There is even a reference to the referendum when, referring to Brexit, the Court notes that ‘The people have decided that’ (Brexit).
The discussion of conventions and practice as part of the Constitution appears far from the Court’s judgment in the earlier Miller case. Then it dismissed the Sewel Convention (that Westminster would not normally legislate in devolved matters) as merely ‘political’ and thus unenforceable.
Once again, the lacunae in the UK’s constitution are exposed. There is no real balance between executive and legislative authority. There is no working head of state to act as constitutional arbiter. Some conventions are binding while others are not. The devolution settlement both disperses power and keeps the last word with the centre. Referendums are treated as binding, while Parliament remains sovereign. The courts have been reluctant to step into these gaps in the constitution but are increasingly like to be drawn in anyway. In spite of its reluctance, the Supreme Court at last start to act like a constitutional court, teasing out the implications of our complex constitutional order in a way that constitutional courts in other jurisdictions have done.