News has just broken that a Scottish court has decided unanimously that Boris Johnson’s advice to Her Majesty to prorogue Parliament was unlawful.
It’s a shock ruling, which has delighted everybody you would expect it to delight and likewise outraged everyone it might be expected to outrage. It also flatly contradicts a ruling by an English court last week, which rejected a similar argument.
The Supreme Court will hear the case on Tuesday. It was already set to, as a result of the English judgment, but the Scottish ruling has now cast some doubt onto what until now seemed very likely to be a ruling in favour of the Government.
At the time of writing there is some debate as to whether or not this result immediately undoes the prorogation itself, although Dr Catherine Haddon of the Institute for Government says that it does not.
This ruling is that it was the PM’s advice to the Queen on prorogation is unlawful.
That does not (yet) change the prorogation itself. Though of course will add to pressure
Supreme Court on all this is next Tuesday.
— Dr Catherine Haddon (@cath_haddon) September 11, 2019
Yet the ruling does have some immediate political effects, the first of which is to put the Prime Minister on the back foot just as he’d hoped to find some breathing space to roll out his domestic agenda. He now faces a PR battle against suggestions that he deliberately misled the Queen in order to dissolve Parliament. Even experts such as Dr Haddon are framing the issue – I think somewhat unfairly – in ‘trust’ terms.
But it is also another step towards a looming constitutional showdown between the political and judicial elements of our constitution. One observer has noted that in making this ruling the Scottish judges have strayed some way beyond their normal constitutional bounds, and another suggests that the ruling effectively makes “vast swathes” of the works of authority which form the basis of UK law have been rendered “dubious” at a stroke.
Doubtless their defenders will claim that they are defending some worthy higher principle. But a constitution is about maintaining a common set of rules by which the game is played. Once a sense sets in that the rules are being unevenly applied, common consent for both rules and umpires erodes. That way lies the path to a real constitutional crisis.
The Government is appealing, and the Supreme Court may yet row in behind the English courts and avert any immediate crisis. But even if so, this is a battlefield we shall undoubtedly return to – whatever happens with Brexit.