James Heappey Weekly Column

It seems almost routine now to write these columns in the context of extraordinary political upheaval. The prorogation of Parliament was not considered a matter for the courts in England and Wales but in Scotland it was, and those Scottish judges decided it was illegal. Both cases are this week under consideration in the United Kingdom's Supreme Court and at some point within the next few days, the most senior judges in the land will make their decision.

However, there is a wider challenge to the functioning of our democracy that we should have in the back of our minds as we react to whatever judgement the Supreme Court makes. Hitherto, the courts have been invited to decide on matters of policy very rarely and that has been the preference of the judiciary too because they do not wish to be drawn into politics. Yet actions that may seem expedient to some for the purpose of blocking Brexit, will set a precedent that risks being drawn upon in referring other contentious political decisions to our courts in the future.

In the United States, the routine involvement of the Supreme Court in resolving differences of opinion between the executive and the legislature has meant that the likely policy positions of nominees to the Supreme Court are scrutinised endlessly and the confirmation process is intensely political. That is all a big leap from where we are right now but we should be clear that in Parliament and in our courts, the things people are doing to block Brexit sets a precedent that will not improve our constitution.

I want to be very clear, this does not mean that we should question the impartiality of the Supreme Court as it is right now and I respect whatever judgement they make over prorogation. However, the argument still stands; we are creating a precedent that I fear we will regret.