“Unlawful, Void And Of No Effect”
Yesterday saw the delivery of the decision in the UK’s Supreme Court into an appeal related to Boris Johnson’s decision to prorogue parliament for five weeks. The Supreme Court justices, the highest legal authority in the land, decided unanimously, 11 to nil, that the Prime Minister’s action was unlawful. As a consequence, the prorogation was deemed to have no validity and parliament was free to resume its session, essentially, as if nothing had happened. Parliament is due to reconvene today.
Usually, prorogation of parliament is considered to be a prerogative power of the Prime Minister, allowing them to terminate one session of parliament in order to prepare the Queen’s speech which lays out the programme for the next parliamentary session. Typically, such a move happens every year (in spring) and the preparation of the speech takes a few days. However, Johnson’s decision to prorogue parliament for five weeks (10/9/19 to 14/10/19) was deemed to be an abuse of power and intended to prevent parliament from going about its normal business of scrutinising government at a critical time in the Brexit saga. Indeed, it was obvious that this was the case since the first mention of proroguing parliament to end the current session (the longest in over 400 years!) was as a mechanism to deliver a no deal Brexit by Jacob Rees-Mogg MP. During the Conservative leadership campaign, most contestants ruled out using prorogation in this way: Mr Johnson did not.
The UK Supreme Court is the highest in the land and its decisions are both binding and final. Their role (in this instance) is to interpret the law. The two key paragraphs from the Supreme Court Summary are the findings that:
That the prorogation was not ‘normal’
“It prevented parliament from carrying out its constitutional role for five out of the possible eight weeks between the end of the summer recess and exit day on 31 October. Proroguing parliament is quite different from parliament going into recess. While parliament is prorogued, neither house can meet, debate or pass legislation. Neither house can debate government policy. Nor may members ask written or oral questions of ministers or meet and take evidence in committees…This prolonged suspension of parliamentary democracy took place in quite exceptional circumstances: the fundamental change which was due to take place in the constitution of the United Kingdom on 31 October. Parliament, and in particular the House of Commons as the elected representatives of the people, has a right to a voice in how that change comes about. The effect upon the fundamentals of our democracy was extreme.”
That Boris Johnson’s advice to the Queen was unlawful
“The court is bound to conclude, therefore, that the decision to advise Her Majesty to prorogue parliament was unlawful because it had the effect of frustrating or preventing the ability of parliament to carry out its constitutional functions without reasonable justification.“
Naturally, the government is not happy about this decision (to say the least). Johnson has cut short a trip to the UN General Assembly and is due to face parliament and repeated calls from many quarters for his resignation for misleading the sovereign.
In comments to journalists after the decision, Johnson stated: “Let’s be absolutely clear that we respect the judiciary in our country and we respect the court. I disagree profoundly with what they had to say”.
However, that comment is wide of the mark. The Supreme Court is the final arbiter of law in the UK. Mr Johnson may be unhappy at their decision on the law, but he cannot “disagree” with it – the justices have spoken. Johnson has also signalled his unwillingness to comply with the Benn Bill, requiring him to ask the EU for an extension if he is unable to get a deal, or an agreement to leave without one, through parliament next month. Such an act could open the PM up to criminal proceedings (contempt of court and misconduct in public office) according to legal commentators.
Parliament is set to resume its session later today. With the precedent of members taking control of the order paper (usually set by government) and forcing through binding legislation, it is likely to presage a very interesting period in British parliamentary history.