The Supreme Court of the United Kingdom quashed the prorogation of Parliament at Westminster.
In the immediate aftermath of the announcement of the decision that Boris Johnson’s advice to the Queen to prorogue, and the subsequent prorogation of, Parliament was unlawful, void, and of no legal effect, a number of commentators declared that the decision of the Court indicated a substantial change to the Constitution of the United Kingdom itself.
In my view, such indications identify a deficiency in the understanding by the commentator of the Constitution, rather than a change to it. It appears to this far-off observer that, contrary to those comments, the decision of the Court maintains a consistent thread of constitutional decisions confirming that the executive is accountable to Parliament at the Law, and that Parliament must be permitted to actually perform its constitutional task.
There is no doubt about the political importance that the decision will have, but the legal importance might well be overplayed in the coming weeks. In a few years’ time, the judgement is likely to be seen as an unsurprising application of orthodox principle. It is no doubt an important decision, but hardly marks a turning point or shift in the law or Constitution itself (despite some indications from the Attorney-General in the resumed Parliament in response to urgent questions).
The courts have, for hundreds of years, ensured that parliamentary supremacy is maintained against a politically ambitious executive. The doctrines of judicial review of administrative action are the primary means by which this is achieved. In Australia, in recent years, the fight in this area of the law has regularly been pursued in the area of migration law.
The consequence of this decision in the Australian context is that minority governments may need to take care not to tempt the wrath of Parliament.