Some realism about Brexit and justiciability

One question which might be posed in such an investigation is: Do the relevant interests of Parliament extend to protracted obstruction of the wishes of the people expressed so clearly by a majority of the voters in the 2016 referendum? The Supreme Court gave two reasons why the PM's advice to the Queen and the making of the prorogation order were open to judicial invalidation.

First, the prorogation undermined the foundational principle of parliamentary sovereignty that laws enacted by the Crown in Parliament were the supreme form of law because the executive could "prevent Parliament from exercising its legislative authorityfor as long as it pleased". The executive branch had used the remnant powers of the monarch in a way which threatened the making of the supreme laws of the UK legal system by the democratically elected legislature.

This is an ironic rationale. At the heart of the referendum decision was the electoral majority's dissatisfaction with the fact that the UK had surrendered no small measure of the parliament's sovereignty sto the EU and the majority wanted to see it repatriated.

Apart from that, it was not at all surprising that, during the course of oral argument, leading counsel for the PM described the rationale as an "extreme hypothetical example". The Supreme Court's riposte, that the reality of practical constraints "offers scant reassurance", does not meet the objection. If the risk was carefully assessed, it might turn out to be far-fetched or fanciful. In any event, the further the mercurial concept of "reassurance" is explored the more likely it is that the judges will be drawn into the political mire.

Secondly, put in a nutshell, the prorogation might undermine the Westminster principle of ministerial responsibility and accountability to Parliament. In short, ministers might run amok, but not "if Parliament stands prorogued for the short period which is customary". In keeping with the Supreme Court's decision, a decision to prorogue the Parliament (or to advise the monarch to do so) will be unlawful if it has the effect of frustrating or preventing, "without reasonable cause" the ability of Parliament to carry out its legislative functions and its supervision of the executive.

The Supreme Court's confident assertion that deciding whether the PM's explanation for advising that Parliament should be prorogued is a reasonable justification for a prorogation having those effects is "a question of fact which presents no greater difficulty than many other questions of fact which are routinely decided by the courts" is one about which opinions will differ. At least four judges in the UK considered that the courts had no business interfering in the course of a unique political controversy which did not involve (to borrow the Supreme Court's language) "action which had such an extreme effect upon the fundamentals of our democracy."

In an age when the dreadful weasel word "populism" is being used by elites to denounce the majority decision-making of the "deplorables", the more judges are inclined to probe into the "interests of the parliament" the more likely it is that they will be confronted with the menacing view (given voice on the ABC RN Minefield https://www.abc.net.au/radionational/programs/theminefield/wheres-the-threat-to-democracy:-boris-johnson-or-the-british-p/11476118programme recently) that although democracy gives ultimate legitimacy to the popular will as expressed through the ballot box there is an abstraction called "representation" which enables elites among the elected representatives to filter, chasten, ignore and improve the popular will. This leads to the conclusion that Boris Johnson is a villain because he effectively has chosen "the people" over "the Parliament", or democracy over political representation. If the judges were to fall for that profoundly misguided view society will have been returned to the authoritarianism of two centuries ago.

There is, perhaps, a whiff of defensiveness about the Supreme Court's judgment in its Aesopian assessment that the dispute had occurred "in circumstances which have never arisen before and are unlikely ever to arise again. It is a "one off".

If the judges are prepared to intervene in a situation where there is no more at stake than a few days or a week or two of parliamentary sittings, future Prime Ministers might well have to consider the potential impeachability of other political decisions on the basis that they risk being subjected to an inherently unpredictable outcome of judges applying a retrospective test of reasonableness. Three cheers for the four lower court dissenters !

Postcript: Since this was written, the UK general election has been conducted. Three cheers also for the deplorables!