Prorogation ruling stirs debate

The unanimous judgment by 11 Justices this week rendered the order in council to prorogue Parliament null, void and of no effect. Lady Hale, president of the Supreme Court, said Parliament had ‘not been prorogued’.

David Greene, senior partner at Edwin Coe and NLJ consultant editor, said: ‘The condemnation of a prime minister’s conduct by our highest court of law is of the ultimate constitutional importance.

‘This and the Article 50 judgment set the parameters of our constitution. But they also raise issues on the nature of our constitution. Has the uncodified constitution had its day or does the flexibility inherent in its conventions provide sufficiently for modern politics as now policed by the courts?

‘There are mixed views with the common law feel to our constitutional arrangements still favoured. The Shadow Chancellor announced the other day the creation of a constitutional right to access to justice. Article 6 in the European Convention and the rights in the Charter of Fundamental Rights already prescribe but obviously Labour is thinking of something more directive and codified. That tends towards a codified constitution maintaining the statutory drift towards codification in “constitutional” statutes such as the European Communities Act and the Human Rights Act.

‘When the dust has settled this debate will be reignited.’

Richard Atkins QC, chair of the Bar Council, said he hoped there would ‘now be a period of calm reflection and that we do not see any comments using inflammatory language or which seek to vilify the judges or lawyers involved in the Brexit (or any) litigation.’ However, several newspaper headlines attacked the judges' decision while the prime minister himself said he disagreed with the judgment. 

Robert Buckland QC, Lord Chancellor, has since said: ‘We must all remember that our world-class judiciary always acts free from political motivation or influence and that the rule of law is the basis of our democracy, for all seasons. Personal attacks on judges from any quarter are completely unacceptable.’