The UK Supreme Court is veering towards a European judicial system – and its ruling on parliament is proof

Let me lay some cards on the table. I was very surprised when the Supreme Court ruled as it did this week. Although we should perhaps have detected the writing on the wall in the prevailing lines of questioning from the justices during the hearing, I felt – and I was not alone – that the judgment of the English High Court would be upheld, to the effect that a prime minister’s decision to advise the Queen to prorogue parliament was essentially a political step and not the business of the courts.

As we know, the 11 judges ruled, first, that it was absolutely the business of the courts and, second, that the prorogation had the effect of sidelining parliament at a time of national crisis, which was unlawful. They declared that Boris Johnson was therefore in the wrong and that the order suspending parliament was to be treated as a “blank piece of paper”. Parliament had never been prorogued, Lady Hale, the court president, said with emphasis. MPs were back on their benches the next day, and proceedings resumed.

The ruling has variously been interpreted as an epoch-making change in the balance of constitutional power as it has existed for centuries, a one-off with no further ramifications (because of the exceptional circumstances and the limits set out in the ruling), and/or part of a massive fightback by the Establishment against a people’s vote to leave the European Union. First it was the MPs who tried to sabotage the referendum result, now it is nothing less than the Supreme Court.

The prime minister, for his part, while notionally accepting the ruling, has made no secret of the fact that he disagrees with it and will not allow it to divert him from his objective of “delivering Brexit” by 31 October – “do or die”. Cue howls of opprobrium from Remainers and defiant plaudits from Brexiteers, not just in the House of Commons, but on phone-ins and in living rooms across the land.

But there is another way of looking at this Supreme Court judgment – which was, whatever its significance, without precedent. The judges were considering not just one appeal, but two – in opposite directions. They were hearing the appeal brought by Gina Miller and others against the English High Court ruling that the advice to prorogue parliament was not a matter for the judiciary. But they were also hearing an appeal against the judgment handed down by the Court of Session – the supreme civil court in Scotland – which enshrined quite a different conclusion.

Unlike the English High Court, the Scottish Court of Session had ruled that the advice to prorogue certainly was a matter that the judiciary was entitled to consider and, what is more, that the prime minister’s motive had been to remove, or minimise, the role of parliament at a crucial time. As such, they said, the advice he had given to the Queen was unlawful.

So the UK Supreme Court was essentially being asked to choose between these two, conflicting, judgments. And what many – myself included – found so surprising was not only that the UK Supreme Court ruled as it did, but that, in so doing, it essentially agreed with the Scottish judges against their English counterparts. They agreed both that the prime minister’s advice to the Queen to prorogue Parliament was – in this case at least – a matter that the courts were entitled to consider, and that the advice had been unlawful.

Now, it is true that the Supreme Court did not follow the Scottish ruling in all respects. There were nuances and there was one big divergence. While the Scottish court considered – and condemned – what it found to be Johnson’s motive (to sideline parliament) at a particular time, the Supreme Court said that it had no need to consider any motive (neatly removing the whole question of whether Johnson had lied to the Queen). It chose instead to focus on the effect of the prorogation, which they said was clear, in that parliament was being shut out of decision-making for an unprecedented long time at a key juncture.

However, in agreeing with the Scots that the judiciary had a right to review a decision made by the prime minister – against the English court’s view that it did not – the Supreme Court has opened the way for the courts to become much more involved in the political process than they have generally been. The ruling was all the more forceful for being unanimous, as Lady Hale stressed several times.

At which point it is surely worth asking whether there is any reason why the creme de la creme of the judicial establishments in Scotland and England reached such diametrically opposed judgments about prorogation. Was it, as some have hazarded, that the Scottish court has an inbuilt anti-English and pro-Remain bias reflecting the Scottish pro-Remain vote in the EU referendum? It’s a theory now replicated by Brexiteer critics of the UK Supreme Court judgment to the effect that, as they see it, with no obvious basis at all, the court is packed with Remainer judges. Or is there a deeper difference at work?

Some of the disparities between Scottish and English law are well-known: our different ways of buying and selling property for one; the numbers sitting on a jury (15 against 12 in England); the possibility of a “not proven” verdict in addition to “guilty” or “not guilty”. But are there perhaps more profound differences that stem from the hybrid nature of Scottish law, some of it reflecting English Common Law, and some the more formally codified Civil Law that prevails in much of Continental Europe? The 1706 Act of Union stipulated that Scotland should keep its own distinct judicial system. Could that, ultimately, be part of the reason for the different conclusions that the Scottish and English courts reached about Johnson’s attempt to have parliament prorogued? Could Scottish judges perhaps, be more inclined to accept a role for the courts in something that might seem largely political?

If they are, might this also mean that the UK Supreme Court is veering towards a more Continental view of the judiciary’s role – at the very time that the UK seems intent on increasing the distance with Europe in other respects? The Supreme Court dates, after all, only from 2009 and generally behaves as a more modern institution than the oh-so-traditional and secretive English judiciary. Is it evolving into something akin to a Constitutional Court or Council on a German or French model? And if it is, is it not high time that the UK Constitution, or parts of it at least, were finally written down?

A more political role for the UK Supreme Court, however, could presage a move in another direction, which again has been mentioned this week, and boils down to “who judges the judges?” At present, UK Supreme Court justices are appointed by the Queen on the advice of the prime minister after being recommended by a special selection commission. Should they perhaps also be subject to parliamentary scrutiny? The political fights that surround Supreme Court nominations in the United States might offer a powerful argument against this – especially in the present, highly polarised, climate. But is avoidance of more conflict enough?

The UK Supreme Court this week promulgated a unanimous ruling that potentially changes the whole balance of constitutional power in this country. The court may indeed have defended the sovereignty of parliament. But it has also created a new legal precedent in which parliament had no say and which has only deepened existing political divisions. This does not make for political, or any other, stability; one way or another, constitutional change must come.