Supreme Court’s Brexit decision did not overstep into politics - Jim Cormack

The 11 Justices of the UK Supreme Court have unanimously decided that Parliament was not actually suspended. This is because the advice of the Prime Minister to the Queen was unlawful and the advice and the steps which followed were of no legal effect. In finding as they did, the Justices upheld the earlier ruling by three appeal judges in the Court of Session in Edinburgh.

Jim Cormack, QC, litigation expert and partner at law firm Pinsent Masons

The Justices had to address whether this was a legal mater for the court at all.

The government had urged them to treat this as forbidden territory, a matter of politics not law. The Justices had little difficulty in dismissing this argument by holding that they were not being called upon to enter politics but to protect the principle of Parliamentary Sovereignty which is a legal principle at common law under our constitution by setting, in law, the limit of the power of the Prime Minister and government.

The court gave a clear answer that the limit is that the Prime Minister must not seek to prorogue Parliament if it would have the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to pass legislation and place the government under scrutiny. It is fundamental to note the focus on the effect of suspension, and not the motive of the Prime Minister. The Court ruled motive out of consideration, which reinforces the point that this about legal rules, not politics.

The Justices clearly held that the limit of power had been exceeded. Parliament had been sought to be suspended for five weeks in a critical period for the UK running up to the current 31 October Brexit deadline. The Government had simply failed to advance any evidence to justify a prorogation of that length at such a crucial time. It was therefore inevitable that as a matter of law, the attempted suspension would be ruled unlawful and void. The Court said that the order issued to suspend Parliament was legally like “a blank piece of paper”.

Those who say that the Supreme Court entered the realm of politics should pay close attention to the reasoning of the Court which is plainly to the contrary. As the Justices noted, what they have done is to apply common tools of legal analysis to place a limit on the discretion of the Prime Minister in a way which protects, rather than undermines, the separation of powers in our constitution among Parliament, government and the Courts. The decision has inevitably led to calls for the UK to have a written constitution but the decision of the Supreme Court can readily be seen as showing that our existing constitutional arrangements are alive and functioning under the rule of law.

l Jim Cormack, QC, litigation expert and partner at law firm Pinsent Masons