Many people will be surprised or dismayed by the Supreme Court’s ruling on Mr. Johnson’s prorogation of Parliament.  Government briefings, Twitter, right-wing tabloids will feed the anger. “Unlawful? What’s Lawful about denying 17.4m BREXIT!”, the Daily Express banner headline today gives the flavour. We are due for a tirade along “War on the Judiciary” lines, People versus the Establishment: “Unelected”, “Undemocratic” “Meddling in our Politics”, “Constitutional Coup” and so on.
It will be no use arguing that our democracy, political stability and constitutional arrangements sometimes require an independent referee between executive and legislature, particularly when the executive tries to avoid scrutiny and shows signs of becoming unaccountable.    Which is of course where and when the Law has to intervene.    Parliament is the primary law-maker.   But, notably when big constitutional issues are at stake, courts take precedence over the rule of anyone else, elected or otherwise: Prime Minister, the Crown in Parliament, the Privy Council, and Lords Spiritual and Temporal. At such moments the court’s judgement may necessarily be political in the broadest sense of influencing the political realm in which the dispute has arisen - just as a referee’s decision will influence the outcome of a football match.  Eleven referees in this case came to the same decision. Mr. Johnson was shown a yellow card.
The popular counter-argument will say the Prime Minister should be permitted in this case to treat the sovereignty of parliament with contempt because politicians have made a contemptible and unholy mess of things, and Mr. Johnson has promised to get things done and dusted to honour the 2016 Referendum result.  It is rather like saying, after a football team has missed several goals, that the other captain can henceforth ignore the off-side rule, and if progress in the opponent’s half is slow, take over as referee to ensure victory for his team.
The Supreme Court did not mince its words. The impact of Johnson’s lengthy five week prorogation “on the fundamentals of democracy was extreme”. The exercise of the core Parliamentary function, to call the executive to account, make it answerable, a principle of parliamentary sovereignty and the basis of our democracy, was being impeded and no adequate explanation for this obstruction had been provided. As I understand it, as a consequence, the Supreme Court was duty-bound to define the limits to the prerogative powers concerning prorogation exercised by the Crown on the advice of the Prime Minister through the Privy Council, and concluded that the Prime Minister had exceeded them. 
The prerogative powers over proroguing were not before this judgement clearly defined. Why should they have been?  As Peter Hennessy described it, the “good chap” premise of our constitutional arrangements prevailed.  Good chaps don’t abuse our constitutional conventions.  Those were the days.
The Supreme Court made law in the Miller and Cherry cases by their – unanimous – judgement. This is how law in this country develops and this is what the Court does. It defined the nature and limits of one prerogative power and drew the conclusion that the Prime Minister’s advice on prorogation was unlawful – he had provided no evidence that a lengthy prorogation was necessary while parliamentary oversight of government business was essential at a critical moment when constitutional change loomed on 31 October.    The resultant Order in Council proroguing Parliament was null and void.  Parliament was not prorogued. 
I doubt if Tony Blair and Lord Falconer when they legislated for a UK Supreme Court in the 2005 Constitutional Reform Act (established on 1 October 2009) forsaw that fourteen years later the Supreme Court would be involved in an historic juridical intervention in constitutional conventions. Nor that a Prime Minister would be pulled up for unlawful conduct in the process. That’s serendipity for you.
In hindsight the judgement seems an entirely sensible and reasonable conclusion to a complex problem.  The court has striven to make it comprehensible to the public.  The Executive is answerable to Parliament, a simple enough starting point.  The judgement has nothing, nor could have anything, to say about BREXIT.  Lady Hale repeatedly made this clear. 
But this will sadly cut no ice in a divided society in which emotion takes precedence over the kind of rational argument proposed by the leading German philosopher Jürgen Habermas’, an ideal of dialogue and conversation, which court proceedings at this level seem to model.  As Mr. Johnson and the Daily Express doubtless wish, the BREXIT divide will determine how people view this historic moment in the workings of our judiciary and democracy.  That it not the fault of the Supreme Court which has provided comforting proof that rational discourse has not entirely deserted this disunited kingdom. 
See also TheArticle.com 25/09/2019
 

You feel you know the North Sea.   Noisy and exhilarating in a full-on easterly, gently lapping and restful with a westerly.  Not the aquamarine of Ionian waters, more the camouflage colours of grey-green and sandy waves pounding the pebbles.  In Summer, young children toddling down to collect water in their buckets for purposes known only to them scream on cue as waves break near them.  Little groups of holiday-makers along the beach, Londoners lily-white, keeping an eye on the youngest, contemplating the beauty; only a few swimming.  An impressionist painting come to life.
There’s life on the beach but not so much life in the water.  Once in a while, the black doggy head of a patrolling solitary seal, checking you out before diving to periscope depth.  Men line fishing early in the morning, escaping bored and fractious adolescents at home, are the first contemplatives on the beach, seem never to catch any fish larger than an inch or two.  And only the soft, gelatinous bump of a Compass jellyfish by way of a brief encounter while you are swimming.  That is the point; beneath the surface, even in the cradling, comforting vastness that is the sea, you sense something isn’t quite right.
Roger Hardy’s disturbing art installation at Snape Maltings in Suffolk, outside the concert hall, until 11 September, tells you what’s wrong.  In these lovely surroundings, Hardy’s message is shocking.  He has built a typical Suffolk fisherman’s hut but with little carved figures made from wood found on the beach, lined up inside, looking out like the families who gaze at the sea on a hot day.  On and around the hut Hardy has ‘chalked up’ information about fish and the oceans.  Not fish that for sale and is available – fish that soon won’t be available.
Some of the stark facts are reproduced below. They have been provided by the Siren Festival in Aldeburgh whose aim is to combine art and science to alert audiences to the perilous future facing our oceans.  And they know what they are talking about. Let these alarming facts speak for themselves. 

Oceans are home to nearly 95% of all life on earth.  They cover 70% of the earth’s surface but only 5% of them have been explored.
50% of our oxygen comes from plankton. Every second breath we take is given by the oceans
One third of the world’s population lives near and on the coast.
1 in 3 fish caught around the world never makes it to plate. 32 million tonnes of fish caught annually go unreported (more than the weight of the entire US population). 38 million tonnes of sea creatures and 40% of the fish catch annually is unintentionally caught. [A tonne is a metric ton and equals c.2,205 pounds weight]
Over a period of 3 days, 2,466 whales, porpoises and dolphins die due to entanglement in nets and as by-catch.
Fish in the North Sea are moving North.
8 million metric tonnes of plastic are thrown into the oceans annually and 236,000 tonnes of this are the tiny particles of micro-plastics.
Plastic debris causes the death of 100,000 marine mammals and a million sea-birds annually.
Currently we are using more than 25% more natural resources than we can sustain.
Leaders of different religions share the sense of alarm and add another dimension to these facts.  Pope Francis in his encyclical Laudato Si, published in May 2015, quotes a canticle of St. Francis of Assisi which calls the Earth, our common home “a sister with whom we share our life and a beautiful mother who opens her arms to embrace us”. The Pope describes how in “tropical and subtropical seas, we find coral reefs comparable to the great forests on dry land, for they shelter approximately a million species, including fish, crabs, molluscs, sponges and algae. Many of the world’s coral reefs are already barren or in a state of constant decline”. “Who turned the wonderworld of the seas into underwater cemeteries bereft of colour and life?” the Pope asks, repeating a question posed as long ago as 1988 in a pastoral letter by the Catholic Bishops Conference of the Philippines.  And he adds: “This phenomenon is due largely to pollution which reaches the sea as the result of deforestation, agricultural monocultures, industrial waste and destructive fishing methods, especially those using cyanide and dynamite. It is aggravated by the rise in temperature of the oceans”.  You would have thought that turning our oceans into a warm toxic soup, with plastic added, ought to preoccupy our government more than escaping the EU’s regulatory Common Fisheries Policy (CFP).
A final inconvenient truth for us in Britain, to quote the MEP, Richard Corbett, is that fish have “the unfortunate habit of swimming from one country’s waters to another”.   20% of fish caught by UK boats comes from outside our territorial waters.  International law on fishing in the UN’s Convention on the Law of the Sea, designed to joint manage fishing fleets and conserve fish stocks, predates the EU.  The Common Fisheries Policy (CFP) essentially follows the Law of the Sea provisions.  So if we do leave the EU, Britain will remain bound by international regulations. And if we are to continue fishing, Britain will both have to abide by existing conservation rules and collaborate in developing further regulations to preserve fish stocks.  We will neither rule the waves nor take back control of the oceans.
Nor has the UK fared unjustly from the EU Common Fisheries policy: for example 84% of the haddock quota permitted in the total allowable catch per species (TAC) goes to the UK,  worth 28,576 tonnes annually in 2015, alongside 34,066 tonnes of plaice, 28% of the TAC. We export 80% of the UK catch, mainly to Europe.  The argument for BREXIT is, as usual, spurious.  Leaving the CFP will change very little, and has the potential to undermine the recent stabilizing effect of the CPF on fish stocks in our European waters. 
That is enough facts for one day.  But reiterating the facts above and the tragic future they foretell is not enough.  What is needed is urgent action to save our oceans.
From 1-27th October Roger Hardy’s installation will move to The Red House in Aldeburgh, Benjamin Britten’s House. 
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