'If Mr Glen has read the Supreme Court judgment he has either misunderstood it or misrepresented it in his article'

The judgment was a unanimous decision by 11 Supreme Court Justices who are appointed independently of the Executive or Parliament. It was a very erudite judgment, clearly written in 71 paragraphs and 24 pages, which dealt fully with, and explained, many aspects of the British constitution, such as the Sovereignty of Parliament, the doctrine of Separation of Powers, and representative democracy.

In the very first paragraph of the judgment, the court made it clear that the case was not about Brexit, but “whether the advice given by the Prime Minister to Her Majesty the Queen...that Parliament should be prorogued...was lawful.”

The following is a brief summary of the judgment.

The first question was whether the lawfulness of the Prime Minister’s advice to Her Majesty is justiciable. The court held that it is. The courts have exercised a supervisory jurisdiction over the lawfulness of acts of the government for centuries. As long ago as 1611, the court held that “the King [who was then the government] hath no prerogative but that which the law of the land allows him”.

The second question was what are the limits to that prerogative power? Two fundamental principles of our constitution are relevant to deciding that question.

The first is Parliamentary Sovereignty - that Parliament can make laws which everyone, including the government and the Prime Minister, must obey: this would be undermined if the executive could, through the use of the prerogative, prevent Parliament from exercising its power to make laws for as long as it pleased.

The second fundamental principle is Parliamentary accountability of the government.

The relevant limit on the power to prorogue is this: that a decision to prorogue (or advise the monarch to prorogue) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In judging any justification which might be put forward, the court must of course be sensitive to the responsibilities and experience of the Prime Minister and proceed with appropriate caution.

The third question was whether this prorogation did have the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.

The court concluded that the decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.

The court was careful not to involve itself in the “political sphere”, but was carrying out its constitutional role in the supervision of the executive. It upheld the sovereignty of Parliament (not the government) and emphasised the importance of the Separation of Powers between Parliament, the executive and the judiciary. It is important that we have an independent judiciary to protect the nation and its citizens from the abuse of executive power. Long may we do so.

Nigel Brookes

(retired judge)

Laverstock