The welcome decision of the UK Supreme Court in the prorogation case shows the need for a court free from political influence
Last month I ventured to suggest that our judges should in principle be willing to step in if necessary, if a purported exercise of executive power appeared to disturb the constitutional balance between the executive and our elected Parliament.
The decisive intervention of the UK Supreme Court in the Cherry and Miller appeals, upholding the approach of the First Division of the Court of Session, more than met the expectations of those who believed that the act of securing the prorogation of Parliament amounted to an abuse of prerogative powers when it had the effect – irrespective of motive – of precluding debate and accountability.
It appears, however, that respect for the decision by those most affected by it is not all that it should be. Saying you “strongly disagree” with the ruling, while claiming to respect it, as the Prime Minister did, is playing mere lip service to the rule of law and the position of the judiciary. Still, it pales beside those MPs who suggested that the Supreme Court had shown itself by its ruling to be superfluous. Is the answer to a decision that the Government or its party does not like, now to be to abolish the court that gave it?
No better are the calls for some executive and parliamentary role in the appointment of our leading judges. The recent experience of the USA has been neither a happy one nor one to inspire confidence in its own top court, due to the increasing partisanship that first blocked all President Obama’s nominees ahead of the 2016 election, then used the Republican majority in the Senate to approve President Trump’s nominees in the face of damaging allegations that raised questions as to their suitability. Imported into this country it would raise immediate questions over ECHR article 6 compliance, and only serve to weaken a public trust already at risk from the nonsensical aspersions being cast on our judges by some of the popular press.
And it could be that the ultimate courtroom showdown has yet to take place. Before the month is out we should find out whether the Prime Minister truly has a way to ensure Brexit on the 31st, deal or no deal, while claiming he will observe the law which now includes the Act designed to preclude the latter alternative. If our judges are placed in the difficult position of having to consider whether to make mandatory orders against Mr Johnson at the behest of his equally partisan opponents, we should be grateful at the outset that they are not being labelled as the appointees of any of the interested parties, or their predecessors.