Why did the Court do it? The constitutional reason – an entirely good one – is that the Court has deduced from the fundamental principles of representative democracy and accountable government a set of constraints on power that flow from these principles and which must, as a result, adhere to all exercises of public power, including those of the most senior political figures in the land (paras 41 and 46).
The deeper truth lying behind how these principles were deployed in this case leads us to something that was once a commonplace but these days is a glory rarely to be found in the shrill word of Brexit politics. In law, reason still matters. Facts are relevant. Nonsense doesn’t work. How can you justify the Prime Minister’s power by saying he is accountable to Parliament when you have just dispensed with Parliament? Why on earth do you need to cancel Parliament for weeks to do a Queen’s speech? Deceitful or deliberately obtuse replies to these basic questions might get you through a three-minute media interview or a noisy prime minister’s question time, but they can’t survive the forensic attentions of independently-minded lawyers with time to draw the non sequiturs, the contradictions and the lies to the surface.
This case is not about the judges seizing the policy agenda whatever the critics of the outcome might say. It is concerned with process not substance, with how things get done rather than what is done. Strongly hostile to democracy in days gone by, the judiciary have now embraced its fundamental tenets, taking to heart what we all say matters to us. In this decision, the judges are oiling the democratic machine, not telling it what to produce.
Great stuff. Worth reading in full.