I'm writing this to explain what's going on with the Supreme Court case, not to comment on the rights and wrongs of how we're being treated.
The major issue at stake is whether or not prorogation is justiciable. This means whether of not it's possible for courts to intervene. Normally, there are checks and balances on a government. Those are either political in nature (Parliament holding the government to account) or constitutional (the traditional role of the monarch).
I think there's a legitimate legal argument that *could* be made that the Queen had a right to refuse prorogation because the government didn't necessarily hold the confidence of the House (see, for example, When is prorogation 'improper'? by Professor Anne Twomey)
But the Queen did not refuse the government's request to prorogue. As such, the first question before the Court is whether it has the authority to intervene in this case.
The High Court (England & Wales) found in favour of the government, ruling that the Court did not have the authority to intervene. By contrast, the Scottish Court of Session found against the government; prorogation is justiciable. Having found that, the Scottish Court then ruled against the government on the actual question.
Both judgments are being appealed to the Supreme Court. Bear in mind the possibility that the Supreme Court could well come up with a completely different finding. For example, it could rule that prorogation *is*, or *can be*, justiciable - just that the legal threshold isn't met for overturning it.
The Gina Miller / John Major side argue that this prorogation was to frustrate the will of Parliament, and for an improper motive. Courts do not get involved with the detail of politics in the UK: we have an independent judiciary for a reason. If this is a purely political matter, then the courts cannot get involved. If it's a legal matter, they can.
There is a legal precedent from a case Shergill v Khaira which related to three Sikh temples - but the issue at stake included a question of where courts' authority lay. The Court found in 2015 that "The issue was non-justiciable because it was political. It was political for two reasons. One was that it trespassed on the proper province of the executive, as the organ of the state charged with the conduct of foreign relations. The lack of judicial or manageable standards was the other reason why it was political."
This leaves the Supreme Court in a position where it must answer three questions:
1. Can Courts intervene in this issue?
2. Does it even matter, given that Parliament still has time to legislate on Brexit when it returns?
3. If it does, was the Prime Minister's decision legal?
Of course, if the answer to question 1 is 'No', then the Supreme Court won't answer 2 or 3 either.
You may recall the Stuart Wheeler case of 2008: the courts found that the decision in that case [not to hold a referendum on the European Constitution] was not justiciable because it was a political judgment, not a legal judgment.
There are no legal standards, according to the High Court, by which a Court could even judge such a matter as this. Politics is messy. Politicians do things for more than one reason: maybe Boris Johnson wanted to stifle Parliament; maybe he wanted a Queen's Speech; maybe he did it for some other reason. It's not the job of a Court to speculate on that.
Parliament can legislate to prevent prorogation, or to impose conditions upon it. Parliament has done so in the past: the High Court found that therefore the appropriate check and balance on prorogation is Parliament, not the High Court or the Supreme Court.
When a judge makes remarks in Obiter (in passing - not directly related to a case) it doesn't form precedent which binds a future court. A court will give less weight to that than to formal precedent.
Lord Pannick, acting for the Remain side, advanced the case that "Prorogation may, depending on the facts and circumstances of the case, amount to a breach of Parliamentary Sovereignty insofar as it prevents Parliament from deciding what the law of the land should be and is not reasonably necessary to fulfil the proper objective of prorogation."
Whilst the High Court did not accept his argument, the Scottish Court of Session found differently. They found that this prorogation made Parliamentary scrutiny 'all but impossible'. They said in effect that the Executive cannot simply suspend the Legislative on a whim.
So what result do we expect? The Supreme Court will be mindful of two things:
1. If they rule that prorogation is illegal, they're going a long way beyond what courts have previously ruled - and they're in uncharted legal territory, writing precedent which will significantly develop constitutional law in a very short timeframe.
2. But if they rule that it's not justiciable, then they're providing the Prime Minister with authority to prorogue as and when he or she sees fit.
I half-expect a fudge: that the Court says it would not intervene except in the most extreme of circumstances. They won't intervene this time, but if something were a clear abuse of democracy they reserve the right to. By declining to set an actual legal standard for the issue, they would avoid having to write law right now.
It would be a technical win for the Government but could limit the Government's hand later.
It's the classic 'elephant test'. It's difficult to describe an elephant, but you know one when you see one.
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