A Constitutional Land Grab – The UK Supreme Court and Prorogation

In its judgment in two cases relating to the prorogation of Parliament, in which it struck down the prorogation order issued by the Queen on the advice of the Prime Minister, the UK Supreme Court made what Lord Sumption has rightly called a ‘revolutionary’ move, placing itself squarely in the middle of territory previously regarded as exclusively political. This is an unwelcome constitutional development with long-term negative consequences, and is unsupported by any of the legal analysis on which the Court attempts to rely.

Two common features of a constitutional crisis – there should be no doubt that this is what the UK is currently experiencing – are now fully in evidence.

The first is the tendency of small events to have large effects beyond their original scope or purpose. The Fixed-term Parliaments Act 2011 had the pragmatic aim of binding the Conservatives and Liberal Democrats into a full five-year term of coalition government (2010-2015). Its function was to make clear to both parties that neither could bail out in mid-term as soon as they sensed a politically advantageous moment to force an election.

The political need for this was exhausted by the coalition coming to the end of its natural life, and the Conservatives proposed in their 2017 Manifesto to repeal the Act. However, failing to win a majority in that year’s election, they could not carry it through. So the Act remains on the statute book, where it now stands as one of the most consequential pieces of constitutional legislation in recent times. By depriving the Prime Minister of the traditional power to call an election at a time of his choosing, it is major contributor to the current sclerotic state of Westminster politics.

The second feature is that constitutional actors seek to take advantage of the prevailing disruption of established norms in order to arrogate power either to themselves or their institutions, so redrawing the boundaries of constitutional authority in their own favour. The UK constitution, with its significant unwritten elements – the maintenance of which relies heavily on conventions of moderation in behaviour – offers fertile territory for this kind of constitutional land grab. The Speaker of the House of Commons has previously ripped up the rule book which constrained him (see here). And now the Supreme Court has chosen to do the same.

The opportunity for the Court arose in the combined cases of Miller v The Prime Minister and Cherry v Advocate General for Scotland (together Miller No. 2, to distinguish the case from earlier litigation by the same claimant). The Court’s judgment is one of the most significant and controversial in its brief history.

The controversy is well-justified, because the Supreme Court has overreached itself. Viewed as a constitutional intervention, the substance and effect of Miller No. 2 is that the Court has taken occupation of territory formerly regarded as lying exclusively within the sphere of politics, and done so without even the virtue of being transparent as to its intent or that outcome. Viewed purely on a legal-analytical basis, the judgment fails on its own terms.

It is, in short, a poor judgment. And it will have important, and negative, implications for the future both of the Supreme Court itself and the UK constitution more generally.

The Basic Concepts – Prorogation and Justiciability

When considering the judgment in Miller No. 2, clarity of language is essential. A wide range of commentators – and indeed the Court itself at certain points in its judgment – have used the terminology of ‘prorogation’ and ‘justiciability’ too loosely to be clear about what actually took place.


To understand prorogation, three concepts must be distinguished.

First, Parliament is ‘dissolved‘ when the currently elected assembly comes to an end, and a general election takes place. Under statute, the default position is that this occurs every five years.

Second, the lifetime of a Parliament is divided into a number of legislative sessions, and Parliament is ‘prorogued‘ when one of these sessions is brought to an end pending the beginning of a new session with a fresh legislative agenda. Each session typically lasts about a year (although the current session has lasted more than two) and the period between sessions is usually a matter of one or two weeks.

Third, Parliament is in ‘recess’ during any given session when sittings in the main chamber are adjourned for a time (such as for holidays).

Dissolution and prorogation were traditionally effected through the prerogative powers of the Crown which, conventionally, were exercised in line with the advice of the Prime Minister. Recess is simply a matter of Parliamentary business management, within the control of the Members of Parliament at any given time.

However, since the Fixed-term Parliaments Act 2011, the prerogative power to dissolve Parliament has been overridden. Partly because of this – it seems clear that the Prime Minister would by now have called a general election if that were an option still open to him – the government decided on an unusually long period of prorogation as one way of exerting some control over a fractious House of Commons in the run-up to Brexit.

The Prime Minister advised the Queen to prorogue Parliament for a period of a little over a month (from 9-12 September to 14 October 2019). In accordance with the established convention, she took his advice and a prorogation order was made on 28 August 2019.

By this means, the first common feature of constitutional crises now gave birth to events that would trigger the second.

The prorogation was a nakedly political manoeuvre. But the outraged response to it was largely a political confection. On any objective reading, its implications were less severe than its opponents claimed.

Although longer than usual, the period of prorogation was not unprecedented. It was to overlap a period in which Parliament would in any event have been in recess for party conferences, leading to a loss of sitting time of at most six or seven days. It respected the limits on prorogation set out in section 3 of the Northern Ireland (Executive Formation) Act 2019, and did nothing to prevent Parliament from legislating to prevent a no-deal Brexit by virtue of the European Union (Withdrawal) (No. 2) Act 2019.

Be that as it may, legal proceedings quickly followed in which most of the litigants were political opponents of the current government. The parallel cases of Cherry (in Scotland) and Miller (in England and Wales) were commenced – the former before a prorogation order was even made – in order to challenge the decision to prorogue.


The main question in each of these proceedings was whether the decision to prorogue Parliament (or the advice which led to it) was ‘justiciable’.

Justiciability is the test of whether a question is suitable for adjudication by the courts, or falls outside the scope of matters that are considered amenable to judicial decision (and is therefore ‘non-justiciable’).

The underlying basis for this concept was most elegantly summarised by Lord Justice Mummery in Khaira v Shergill:

...non-justiciability is a salutary principle of judicial self-restraint. It ensures that judges do not overreach themselves and that they abstain from deciding questions that are neither appropriate for, nor capable of decision by, judicial method. Judges are not capable of understanding and deciding everything and it is not their function to do so. Judges are not omniscient. The courts they sit in are courts of law. There are matters on which a court is not competent to speak with authority, because of the limitations inherent in the nature of the judicial process, and therefore should not speak.‘ (at [70])

Cases can be non-justiciable for a range of reasons. The question in Khaira v Shergill was whether an issue was non-justiciable because it was concerned with religious doctrine and practice. The question in both the Cherry and Miller cases was whether prorogation was non-justiciable because it lay exclusively within the sphere of politics.

For context, it has been clear ever since the seminal House of Lords judgment in CCSU v Minister for the Civil Service that the manner in which a prerogative power is exercised is amenable to public law challenge in principle, but that this is subject in each case to the prior question of whether the exercise of the relevant power is justiciable at all.

On this matter, at first instance, both the Outer House of the Court of Session in Scotland and a very powerful Divisional Court in England and Wales (comprising the Master of the Rolls, Lord Chief Justice and President of the Queen’s Bench Division) gave judgments grounded firmly in the existing case law.

The Outer House and Divisional Court, citing a range of authorities – including CCSU itself and several other decisions of both the House of Lords and Supreme Court – found that prorogation clearly fell within the category of non-justiciability.

In Cherry, Lord Doherty held that:

Some functions exercised or decisions taken are non-justiciable. Among them are matters of high policy and political judgment. The court does not have the tools or standards to assess the legality of such matters. That is political territory and decision-making which cannot be measured against legal standards, but rather only by political judgments. The courts will not seek to superimpose legal controls on such matters. Rather the accountability for them is to Parliament and the electorate.‘  [25]

And in Miller, the Divisional Court’s judgment was that:

The Prime Minister’s decision that Parliament should be prorogued at the time and for the duration chosen and the advice given to Her Majesty to do so in the present case were political. They were inherently political in nature and there are no legal standards against which to judge their legitimacy. The evidence shows that a number of considerations were taken into account….All of those matters involved intensely political considerations.‘ [51]

The Supreme Court

The case reached the Supreme Court as Miller No. 2 having leapfrogged the Court of Appeal in England and Wales. But by this time the Scottish first instance judgment in Cherry had been successfully appealed to the Inner House of the Court of Session – the Inner House (in essence) holding that it was in fact possible to apply a legal standard of review to the decision to prorogue, and therefore that the question should be treated as justiciable.

In considering the judgment of the Supreme Court, it is important to be clear what the Court did not decide, as well as what it did.

What the Supreme Court did not decide

The Supreme Court did not adopt the reasoning of the Inner House in Scotland. Nor did it disagree with the reasoning of the Outer House or of the Divisional Court in England and Wales. In spite of the impression given by many commentators who surely know better (not least Sir Stephen Sedley writing in the LRB), it declined to determine the question of justiciability in the sense in which that concept had been considered by each of the lower courts.

The problem faced by the Supreme Court, in wanting (as it plainly did) to determine that the prorogation was unlawful, was that the judgments of the Outer House and Divisional Court were impeccably orthodox in their treatment of the question of justiciability, and in line with all prior authority.

The Supreme Court is, of course, not bound by precedent, not even its own. Although it should be ‘very circumspect‘ before electing not to follow its previous decisions (Willers v Joyce at [7]), it was open to it to redraw the boundaries and make clear that the territory previously regarded as solely political was now to be regarded as legal and falling within the province of the Court. It was open to it, in other words, to change the long-established law on justiciability, overturn prior orthodoxy, and declare an expansion of its own remit and authority.

But such an explicit redrawing of the boundaries would also make plain what was taking place, leaving the Court exposed to accusations that it was acting unconstitutionally, and to criticism that it was doing so either for reasons of institutional self-interest or underlying political motives. If the purpose of the principle of justiciability is for the courts to demonstrate ‘self-restraint‘, this would leave little room for doubt that the Court was casting off its shackles. At a personal level, the Supreme Court Justices may also have been conscious of the history of press criticism of their decisions (see here); it would be understandable for them to want to avoid a repetition.

In addition, if the boundary lines of justiciability were to be redrawn, difficult questions would arise as to precisely where they were to be reset; unless the concept were simply abandoned altogether – a huge step in a case decided under significant pressure of time.

The Supreme Court simply declined to wrestle with these challenges. Instead, it sought to evade them by a judicial sleight of hand.

Leaving aside (for now) whether this was a suitable way to proceed in a case of major constitutional importance, the Court is entitled in the first instance to its judgment being taken at face value and held up to scrutiny on its own legal-analytical terms.

What the Supreme Court did decide

The Supreme Court sought to circumvent the problem of justiciability, and the ‘unhelpful’ previous case law, by re-framing the issues before it in an entirely different way.

It observed that there were two questions [35]. First, ‘whether a prerogative power exists, and if it does exist, its extent‘. This ‘undoubtedly lies within the jurisdiction of the courts‘, in the sense that it is a question of law and like all questions of law, must by definition fall to judges to determine.  Second, if there is a power, and if it has been exercised within its limits, whether ‘the exercise of the power is open to legal challenge‘. This is the question that raised the issue of justiciability considered by the lower courts.

In other words, the first question was whether there were intrinsic limits on the power to prorogue. The second question was what (if any) extrinsic standard should be used to assess the lawfulness of the exercise of that power if it were otherwise within its limits. The first question was logically prior to the second –

Before reaching a conclusion as to justiciability, the court therefore has to determine whether the present case requires it to determine where a legal limit lies in relation to the power to prorogue Parliament, and whether the Prime Minister’s advice trespassed beyond that limit [the first question], or whether the present case concerns the lawfulness of a particular exercise of the power within its legal limits [the second question].‘ [36]

If the answer to the first question was that the prorogation took place outside the scope of the legal power to prorogue – if it was, in effect, ultra vires – the second question would never have to be answered.

The Supreme Court then proceeded to answer the first question in such a way that it was not required to deal with the second. It held that the prorogation was just a purported, and not an actual, use of the prerogative power. This meant that the Prime Minister, and indeed (it is never said this bluntly) the Queen, acted beyond the scope of their powers, so that what was done was not prorogation at all but ‘unlawful, null, and of no effect‘ [69].

Hence, following this logic to its conclusion, ‘Parliament has not been prorogued‘ [70]. Or, in a rhetorical flourish permitted to Lady Hale for the television cameras, on the formal announcement of prorogation it was ‘as if the Commissioners had walked into Parliament with a blank sheet of paper‘ [69].

The Analysis and its Errors

This conclusion was counter-intuitive, because it was counter-factual. There was never a serious question that the power to prorogue existed, and what else was the prorogation order but a clear exercise of that power?

Inevitably this provokes the questions of what legal analysis the Court used to come to a different conclusion, and whether it can withstand scrutiny?

On the face of it, the heart of the judgment lies in paragraph [50], where the Court asked itself what was the scope of the prerogative power to prorogue Parliament, and gave the following answer –

…a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out it constitutional functions as a legislature and as the body responsible for the supervision of the executive.

The scope of the power is here defined by what it is not, i.e. what would be an ‘unlawful‘ (the Court never says ultra vires, but that is what it means) exercise of it. There are only two elements to this. The first is that it frustrates the constitutional role of Parliament. The second is that it is without reasonable justification.

It is unclear whether the first element adds anything. On one view, prorogation always prevents Parliament from fulfilling its role, since by its nature it stops all Parliamentary activity. So arguably this test is always met, being inherent in every prorogation. There are other indications that the Court was seeking to distinguish ‘normal‘ from abnormal prorogation (at [56]). But if so it is unclear on exactly what basis this line could be drawn. Such a test seems likely to be both unworkable and meaningless.

The second element appears the more significant. It writes into the prerogative power a requirement that, to the extent that it prevents Parliament from fulfilling its role, it can be used only where there is ‘reasonable justification’. The Court offered no guidance on what such a justification might be. It merely said that no such justification was advanced in this case – ‘It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks…It follows that the decision was unlawful‘ ([61]).

And this, in the Court’s view, was sufficient to dispose of the case, and to allow it to reach the conclusion that the prorogation was a nullity –

As we have explained, it is well established, and is accepted by counsel for the Prime Minister, that the courts can rule on the extent of prerogative powers. This is what the court will be doing in this case by applying the legal standard which we have described. That standard is not concerned with the mode of exercise of the prerogative power within its lawful limits. On the contrary, it is a standard which determines the limits of the power, marking the boundary between the prerogative on the one hand and the operation of the constitutional principles of the sovereignty of Parliament and responsible government on the other hand.‘ [52]

As this statement makes abundantly clear, the Court was not here applying an extrinsic standard to the exercise of the power but was instead writing an intrinsic standard into the power – thereby sidestepping all of the case law which said that the former was non-justiciable. This can most charitably be described as an exercise in creative law making. In any event, it was impermissible, and mistaken, for two reasons.

(1)  The nature of prerogative powers

In A V Dicey’s famous definition – adopted by the courts in a range of constitutional cases, such as De Keyser and Burmah Oil (per Lord Reid: ‘The definition of Dicey always quoted with approval…‘) – the royal prerogative is:

…the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown.

The key words here are ‘arbitrary’ and ‘residue’. The source of the prerogative lies in the arbitrary powers of the medieval monarchy which once comprised the source of all state authority. What remains of those powers today is residual because it is the element of the original prerogative powers that has not been eroded or curtailed by primary legislation. ‘It is inherent in its residual nature that a prerogative power will be displaced in a field which becomes occupied by a corresponding power conferred or regulated by statute‘  (Miller No. 1 at [48]).

Indeed the constitutional development of the UK is in large part a story of how the royal prerogative cedes territory over time to Acts of Parliament – ‘The constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature‘ (Lord Browne-Wilkinson in R v Secretary of State for the Home Department ex p Fire Brigades Union).

However, it also follows from this that –

The prerogative powers of the Crown remain in existence to the extent that Parliament has not expressly or by implication extinguished them.‘ (Fire Brigades Union)

The royal prerogative is therefore ‘the remaining portion of the Crown’s original authority‘ (Dicey).

It is undoubtedly a question of law, and therefore for the courts to determine, where the limits of the royal prerogative now lie by reference to the territory, previously occupied by prerogative powers, that has now been colonised by legislation. But this can be no more than an exercise in cartography – mapping the boundaries of what remains of the original prerogative. It is of the essence of the prerogative being a ‘residue’ that it has not changed.

On this measure, for the Supreme Court to write into the power to prorogue Parliament the requirement that it can be exercised only with ‘reasonable justification‘ is nonsensical and absurd. It is in the nature of a prerogative power being (by definition) what is left of arbitrary royal authority, the that no such limitation has ever been, or could be, intrinsic to it.

(2)  Changing the prerogative powers

How then did the Supreme Court justify this approach, contrary to all first principles as to the legal nature of the royal prerogative?

Notably – and, for the reasons just given, inevitably – it could provide no other example of a prerogative power containing intrinsic limits of the sort it now wanted to write into the power to prorogue Parliament. All of its examples of cases holding that the prerogative  was overridden were in circumstances in which legislation had overridden it [41].

Instead, it reached for the analogy of how the courts imply limits into primary legislation that may impinge on the territory of some fundamental constitutional principle: ‘…it is of some assistance to consider how the courts have dealt with situations where the exercise of a power conferred by statute, rather than one arising under the prerogative, was liable to affect the operation of a constitutional principle‘ [49]. Armed with only this analogy as a means of pulling the desired rabbit out of the hat, the Court reached the conclusion that it could similarly imply limits into a prerogative power.

In the context of the prerogative, this leads to the absurd outcome already mentioned of an arbitrary power intrinsically constrained by a purpose test. It is also a false analogy, and invalid, for reasons which ought to be self-evident. The courts imply limits into Acts of Parliament on the basis of basic interpretive principles, by reference to the assumed intentions of Parliament. No equivalent process can take place in respect of a prerogative power.

As recently as 2014, in R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs, the Supreme Court had expressed this very thought. In that case, Lord Carnwath (who also sat in Miller No. 2), giving the leading judgment, said this (at [61]) –

But prerogative powers do not stem from any legislative source, nor therefore from any such legislative decision, and there is no external originator who could have imposed any obligation to exercise them in one sense, rather than another. They are intrinsic to the Crown and it is for the Crown to determine whether and how to exercise them in its discretion.‘ (emphasis added)

Quite how the Court could square the last sentence of this paragraph with its judgment in Miller No. 2 is one of the mysteries of the latter decision.

The Court did indeed recognise that its analogy did not really work (‘A prerogative power is, of course, different from a statutory power…‘ [49]) but declined to allow this to get in its way. Instead it reached back to the Case of Proclamations of 1610.

Taken in context, the famous statement in that case that ‘the King hath no prerogative but that which the law of the land allows him‘ meant that the Crown had no power to legislate to change the law other than through Parliament – the so-called ‘Crown in Parliament’ – an understanding that prevails today as the bedrock of the UK’s constitution, although it required a civil war and a revolution before it was established for certain.

Taking the statement out of context, the Supreme Court uses it to justify the genuinely radical conclusion which lies at the heart of the judgment, but in such subtle terms that it can easily be missed –

A prerogative power is therefore limited by statute and the common law…’ [49].

This is not a bland statement, as it might first appear. It means that a prerogative power may be limited either by the legislature (statute) or the courts (common law). The former is trite law. The latter is new, and does not follow from the Case of Proclamations or any other authority.

In effect, the Court is here authorising itself, under cover of declaring the ‘common law’, to rewrite and constrain the prerogative powers in a manner that has previously been the exclusive preserve of the legislature (where it is dependent on royal assent, albeit by convention always given – hence the ‘Crown in Parliament’).

It is on this basis that the Court chooses to read into the prerogative a limitation similar to that which it might read into a statute on the basis of Parliamentary intention.

But this is not a development of the common law. It is judicial legislation, plain and simple. It does not derive from any of the legal principles on which the Court relies, and obtains no support from the legal apparatus that the Court seeks to build around it. It is a genuine and radical departure, in which the judiciary declares itself to have a new set of powers that could also be used in relation to any other prerogative power in the future.

It is, in other words, a constitutional land grab.

Consequences and Conclusions

Writing in The Times shortly after the judgment, Lord Sumption, a Supreme Court Justice until the end of last year, said: ‘What is revolutionary about the Supreme Court’s decision is that it makes the courts the ultimate arbiters of what political reasons are good enough‘.

This at least has the merits of an honest appraisal, denied us by the Supreme Court’s own evasions. The lack of transparency of the judgment is deeply unattractive. If the Court is going to make a ‘revolutionary’ constitutional decision it ought to be clear about the fact that it is doing so. If it is going to overturn centuries of precedent, it ought to say that this is the intention and effect of its decision. Sheltering behind a screen of legal technicality, in order to maintain the pretence that it is engaged in normal judicial activity consistent with prior authority, is no way to proceed in a case of constitutional importance.


In this situation, ironies abound. The chief among them is this: in a judgment purporting to defend Parliamentary sovereignty, the Supreme Court did not just constrain executive power, but arrogated to itself authority that has always lain exclusively with Parliament, engaging in an exercise in judicial legislation without precedent, and trespassing on the very sovereignty of the legislature it claimed to uphold.

The constitution function of abrogating, overriding or constraining the royal prerogative lies with Parliament, not the courts. In relation to the power of prorogation, Parliament has in fact legislated to regulate its use on several occasions, including in the Meeting of Parliament Act 1797, the Prorogation Act 1867, the Civil Contingencies Act 2004, and – of direct and specific relevance to current circumstances – the Northern Ireland (Executive Formation Act) 2019.

None of these Acts precluded the exercise of the prerogative power actually undertaken by the Queen on 28 August 2019. In fact, in accordance with the advice she received, the prorogation order was designed specifically to respect the limits imposed by section 3 of the Northern Ireland (Executive Formation) Act 2019.

But what Parliament never imposed by way of constraints on the use of the power, the Supreme Court has supplied by its judgment in Miller No. 2. Moreover it did so at the suit of a group of MPs (the petitioners in Cherry) who are opponents of the government, in effect siding with one political interest in Parliament over another, such that the political character of the decision is hard to avoid.

Citing, in justification of this, the Case of Proclamations, the purpose and effect of which was to uphold Parliament’s exclusive right to legislate, merely compounds the irony.

Most bien pensant members of the legal profession, and the wider commentariat in the media, support this outcome because it runs counter to two things for which they have equal disdain – Boris Johnson and Brexit – delivering a political bloody nose to one and serving as a minor victory in the long and attritional war against the other.

But constitutional innovations cannot be judged by whether you like their short-term political effects; they must be tested instead against whether you can live with their long-term legal and constitutional consequences. It is hard to escape the conclusion that many of those who approve of the outcome in Miller No. 2 would be objecting vociferously if the Court had used the same spurious legal logic to reach a politically less fashionable outcome.

The delicate balance

In his 2013 Institute for Government lecture Judges and Policy: A Delicate Balance, Lord Neuberger, then President of the Supreme Court but speaking extra-judicially, referred to the fragility of the balance between the three branches of the UK constitution, and the need for vigilance, and restraint, by all sides in maintaining it –

Mutual respect must be the order of the day everyday…Mutual respect also requires the the three branches should not intrude onto one another’s patch.‘ (paras 6-7)

But intruding onto the patch of the other branches of state is exactly what the Supreme Court did in Miller No. 2. At a basic level, it offends against the principle of the separation of powers, which, as the Divisional Court earlier pointed out, is ‘a fundamental feature of our unwritten constitution‘ ([42]). For that reason it is, in the final analysis, inherently unconstitutional. It is also, for reasons hinted at by Lord Neuberger, unwise.

Two years before co-authoring the judgment in Miller No. 2, Lord Reed said this in Miller No. 1

For a court to proceed on the basis that if a prerogative power is capable of being exercised arbitrarily or perversely, it must necessarily be subject to judicial control, is to base legal doctrine on an assumption which is foreign to our constitutional traditions. It is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary.‘ (at [240], emphasis added)

Notwithstanding Lord Reed’s Damascene conversion or judicial amnesia (whichever it may be) in Miller No. 2, the point remains sound.


It is always unattractive to watch politicians and the media criticise judges. But if judges elect to make themselves, in Lord Sumption’s words, ‘arbiters of what political reasons are good enough‘, they have chosen to inhabit the political sphere and, like every other denizen of that dismal environment, should expect to be the subject of political critique and indeed the targets of political invective. When Boris Johnson decries the judgment as ‘wrong’, he is plainly within his rights to do so, and might even be accused of a (rare) fit of linguistic moderation.

But if judges are to occupy political territory and make themselves subject to political critique, why should their appointments not also be subject to the political scrutiny, like those of their counterparts in the United States?

In Miller No. 2, the UK Supreme Court has redrawn the boundaries in such a way as to move closer to the politicised character of its US counterpart, and to a model in which its future incarnations are selected and scrutinised accordingly.

Whatever else is said, there can be no greater criticism of its judgment than that.