The rule of law has become the rule of lawyers

Is that enormous silver spider that Lady Hale wore her badge of office? If so, it is appropriate. The Supreme Court has decided to tie up the government in a web of legal reasoning so tight that it can no longer govern. In his dissenting judgment in the earlier Miller case about Article 50, Lord Reed warned that ‘the legalisation of political issues is not always appropriate and may be fraught with risk, not least for the judiciary’. Unusually — as if to compensate for these words — his name was joined with that of Lady Hale in giving the judgment on Tuesday. He would have done better to heed his own earlier warning. They are in deep now.

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The very first paragraph of the judgment gives the Supreme Court’s game away. This is not about ‘when and on what terms’ we leave the European Union, it says, but it goes on to declare the case is ‘a one-off’, in circumstances which are ‘unlikely ever to appear again’. It is the court’s way of saying that it is justified in tailoring the law in response to its perception of a political crisis. This is developed in paragraph 50: ‘A decision to prorogue parliament (or to advise the monarch to prorogue parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive.’ In these words, the court leaps from rightly policing the borders of the prerogative to deciding whether some exercise of the prerogative is reasonably justified. The word ‘prerogative’ thus becomes meaningless. The judges have decided they own it.