In the first Urgent Question session to the resumed House of Commons today, the Attorney-General several times unequivocally endorsed the right of the Supreme Court to extend the Common Law. In doing so, he stated that they had created a new principle in relation to prorogations. The trouble is that uncertainty has been created as to when the courts are able to intervene in a prorogation. The thought that occurred to me was: who is to decide what is an exceptional length of time, and does that not depend on circumstances?
The successful legal actions in Edinburgh and in London were a timely example of a process described in this year's Reith Lectures, that of encroachment of lawyers on a field previously and properly occupied by elected representatives. That ground could be recovered by enshrining in statute law not only the generally-held understandings but also their limits. In the present case, Parliament should have the final say on prorogations as it does in calling recesses.
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