Prorogation of Parliament ruled illegal; UK Supreme Court adds to Johnson’s Brexit woes
This morning the Supreme Court of the United Kingdom passed a unanimous judgement declaring that Parliament had been illegally prorogued as a result of the Prime Minister’s “unlawful” advice to Her Majesty. As a result of this, the prorogation has been declared “void and of no effect,” and Parliament will be brought back into session in the coming days, much to the frustration of 10 Downing Street. The questions now is: what impact will this decision have on the current political landscape regarding Brexit and beyond?
First of all, it is important to establish that we are currently in uncharted territory. Never before has a verdict declaring that the Prime Minister has misled the sovereign been handed down, so there is no historical precedent to follow. That being said, this seems to be turning into a reoccurring theme as it was only last year when Theresa May’s government made history as the first one to be found in contempt of Parliament over ministers’ refusal to publish legal advice they had received regarding Brexit. Now Johnson – after losing his majority and his first six votes in the House of Commons – finds himself in an even worse position than his predecessor.
The summary document from the Supreme Court lays out the context for the case in question. But for a brief summary, two cases were put forward challenging the lawfulness of the prorogation of Parliament. One was put to the High Court of England and Wales, and one to the Inner House of the Court of Session in Scotland. The High Court of England and Wales found that the case was not justiciable in a court of law, meaning it was a matter of politics, not law and thus could not be ruled on. The Inner House of the Court of Session in Scotland meanwhile found that the issue was justiciable and that it was “motivated by the improper purpose of stymying Parliamentary scrutiny of the Government.”
The Inner House also found the prorogation to be “unlawful and thus void and of no effect.” Both decisions were subsequently appealed and thereby ended up in the UK Supreme Court for judgement, bringing us up to this morning.
Similarly to the two previous courts, the Supreme Court faced two distinct questions. Firstly they had to answer, whether the lawfulness of the Prime Minister’s advice to her majesty was justiciable. Then secondly, they had to decide if there was a reasonable justification for the prorogation. Regarding the first question, the Court found the advice to be justiciable, citing a ruling from 1611 declaring the King [who was the government then] to have “no prerogative but that which the law of the land allows him.”
Then, regarding the second question, the Court found “no justification for taking action with such an extreme effect” to have been put before them. The only evidence that The Government could cite in their defence, was that the move was made to prepare for a Queen’s speech. This was found to be wholly unsatisfactory given that preparations usually take four to six days and the prorogation was set to last for five weeks.
The end result was that all 11 Justices ruled the prorogation to be “void and of no effect,” thereby overturning the decision from the High Court of England and Wales, and dismissing the appeal of the case from the Inner House of the Court of Session in Scotland. Following this, the Speaker of the House of Commons, John Bercow, advised reporters that Parliament would resume business tomorrow morning.
The great irony of all this is that from Johnson’s perspective the act of prorogation itself was a failure anyway. If it was done, as many suspect, to try and force through a no-deal Brexit without Parliamentary interference then it had already been quashed before the Court even took session. This was done through the Benn bill, which was granted royal assent and became law just before the prorogation. The Benn bill becoming law also meant that Johnson’s claims of no-deal Brexit remaining the default option come October 31st are demonstrably false.
In reality, the law states that if a deal is not put in front of Parliament then the Prime Minister is legally obligated to seek an extension of Article 50 in order to avoid a no-deal Brexit. Taking this into account its clear that all the prorogation has managed to do is to further weaken and embarrass a government that seems to be lurching from defeat to defeat.
Of course, this is of little concern to Johnson, who is set to continue on as Prime Minister with a majority of -43, thereby making it almost impossible for him to pass any meaningful legislation. Additionally, as every day ticks by it seems less and less likely that the Prime Minister will be able to agree on any new form of Withdrawal Agreement with the European Union before the deadline set by the Benn bill. After that point, it is simply a question of whether the Prime Minister would try and break the law in order to force us out without a deal.
Now, assuming the Prime Minister will adhere to the law, a General Election in November is still the most likely path forwards, that is assuming the European Union agree on an Article 50 extension until the end of January. Then, the future of the country will rest upon the results of the election. A Conservative government will likely take Britain out without a deal; a Labour government will likely hold a second referendum which will determine whether we leave or remain in the European Union; a Liberal Democrat government will revoke Article 50 and keep Britain in the European Union.
However, I simply cannot stress this last point enough. No matter what the Prime Minister, Members of Parliament or any journalists say, how Brexit happens, or whether it happens at all is by no means guaranteed. To be clear, I am not passing judgement on whether it should happen or how, I am simply making sure that everyone understands that they will still yet almost certainly have a say in the process, and an important one at that.
We may yet have a General Election, a Second Referendum or both. Either way, your vote will soon matter so make sure you and everyone you know are all well enough informed to make that decision, and if you haven’t already, please register to vote here, or if you think you may be busy then apply for a postal vote here.