Weekly Update

As the polarisation of opinion over Brexit continues to expose the limitations of the UK's constitutional arrangements, and in particular the fragility of normative constraints on the Executive, this was a momentous week in which the UK Supreme Court unanimously reasserted a constitutional truism that should never have been in doubt: that in a parliamentary democracy committed to the Rule of Law, Parliament is supreme over the Executive.

Suggestions that the Supreme Court's prorogation judgment is a "revolutionary" intervention, or a "constitutional coup", show a poor grasp of history. The constitutional principles invoked by the unanimous Supreme Court - Parliament's supremacy over the Executive and the Executive's accountability to Parliament - were settled in this country by the constitutional struggles of the 17th century, which resulted in a constitutional settlement in which Executive power was subjected to law, of which Parliament is the principal source. The only novelty is that the courts have been forced to apply those principles because the Executive has disregarded the conventions which have given them life. It is a measure of the progress that we have made as a civilised society since the 1600s that this latest constitutional confrontation between the Government and Parliament has been settled, for now, by civil law, not civil war.

The Prime Minister's fork-tongued response, that he respects the Supreme Court's decision and the independence of the judiciary, but that the Supreme Court was "wrong" to treat the issue as one the courts are entitled to decide, shows that in the political sphere the underlying constitutional debate is not settled, and the legitimacy of the Supreme Court's decision (and presumably also the constitutional principles on which it was based) will continue to be contested by the present Government.

This makes it a matter of some urgency to fill in the rather curious gap in the Supreme Court's reasoning, by explaining that the foundational constitutional principle underpinning the decision is the Rule of Law, which requires that in a representative democracy Parliament is supreme over the Executive and there can be no such thing as unlimited and unreviewable Executive power. Unless we understand the Supreme Court's historic decision in this way, as a vindication of the Rule of Law, when normal service is resumed and we have a Government, of whatever political colour, enjoying a healthy parliamentary majority, it will be the Government which is selectively invoking the constitutional principles relied on by the Supreme Court, to seek to immunise its laws, policies and decisions from any review for legality by the courts.

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