Even as early as tomorrow we may hear the decision of the eleven Supreme Court judges on whether the Prime Minister acted lawfully when he advised the Queen to prorogue parliament. There is a high expectation that they will rule against the government and beat yet another blow against a Prime Minister who is already reeling from the consequences of the votes he lost in the first week of September. The exact wording of the ruling will be important. If, as is now expected, the court rules that the case is justicible and that Boris Johnson acted illegally, the main question will be whether they judge him to have acted illegally by intention or by consequence. The distinction will be important. The first demonstrates malintent and the second suggests something like accidental illegality of action. It will frame the consequences of this case on the Brexit process, but more seriously it may also frame how people will come to view the judiciary.
Unlike in America, where the appointment of judges to the supreme court is eminently and openly a political decision, we have been saved in large part from the politicisation of the judiciary. Of course the judiciary is political, at least in so far as it has evolved the ways in which it interprets the scope of its legitimate purview. That is a political judgment for it interferes with the way in which we are governed. But we at least like to imagine that court judgments are not influenced by wider and less abstract political considerations.
The government’s lawyers repeatedly argued that if the court were to rule that the proragtion of parliament was illigal, it would be wading into the political arena in a manner that is illigitimate. That charge is important and which ever way the court rules, it will have consequences for the future balance between the excecutive, the legitlature and the judiciary. But the immidiate consequence of this judgement might come to be seen as wading in politically in a different light. The danger is that it will be seen as the Supreme Court making a judgement which favours one political course over another. In her opening remarks, Lady Hale was careful to claim that the legal decision would not determine Britain’s exit from the European Unon. Whether this is precisely true is debatable. It will in the least heavily influence the political mood music around Brexit.
The court may feel that it is the final check on an executive completely out of control. Without a sitting parliament and a Queen widely regarded as powerless to appose the advice of the Prime Minister, it may seek not only to impose limits on the current Prime Minister but also any future one who might wish to rule without parliamentary oversight for even longer periods. But a decision to assume this responsibility would be an extraordinary assumption of power by a body that is entirely unelected.