The Supreme Court decision in Cherry/Miller (No. 2) raises questions as to whether it constitutes an attack on Parliament or serves to protect it. Some MPs have assailed it as undermining Parliament. Is Parliament a winner in the light of the judgment? The answer is both yes and no.
It is a winner in constitutional terms. The judgment is crafted in order to protect Parliament from executive overreach. The nature of the judgment is encapsulated in Sionaidh Douglas-Scott’s article in Prospect: ‘An extraordinary judgment or constitutional orthodoxy? The Supreme Court’s ruling is both’. Mark Elliott argues a similar point in his blog ‘Public Law for Everyone’: ‘while the judgment develops and applies relevant elements of UK public law in sometimes novel ways – and certainly in novel circumstances – it is rooted in well-established constitutional principles’. The Court distinguished parliamentary sovereignty from parliamentary accountability, concluding that the effect of an extended prorogation was to prevent Parliament fulfilling its duty as the body responsible for ‘the supervision of the executive’. The exercise was thus one, as Jeremy Waldron has noted, not of a judicial review of legislation, but judicial review of the lawfulness of executive action. The Court was upholding, not challenging, the longstanding constitutional position of Parliament. The judgment was exceptional – a ‘one off’ as Lady Hale put it – but one exercised in defence of the institution,
Parliament is, however, a loser in political terms. The judgment means that Parliament continues to sit to debate and process measures. The problem is that when it sits, especially to consider Brexit-related matters, it impacts negatively on public perceptions. The Hansard Society Audit of Political Engagement shows that the proportion of respondents who feel that the system of governing needs ‘quite a lot’ or ‘a great deal’ of improvement stands at 72 per cent, the highest level it has been in the Audit series. Only 25 per cent have confidence in the Members of the House of Commons in handling Brexit; 73 per cent have not very much or no confidence. Furthermore, 42 per cent of those questioned agree with the statement ‘Many of the country’s problems could be dealt with more effectively if the government didn’t have to worry so much about votes in Parliament’. This is a remarkable finding, impossible to imagine in earlier decades.
We thus have a somewhat ironic situation in that the body working to protect the institution of Parliament is the Supreme Court, whereas those undermining it in terms of public trust are the very members of the institution. Rather than engaging in displacement activity, criticising judges, MPs may need to reflect on how their own behaviour is impacting on public perceptions.