Few commentators expected that the UK Supreme Court would deliver a unanimous and unequivocal reply to the arguments which Gina Miller, Joanna Cherry and others brought against the decision by Boris Johnson, the prime minister, to advise the Queen to prorogue parliament. For constitutional lawyers, it was indeed exciting to see Brenda Hale, the president of the court, lay down the building blocks upon which a decision of great significance was established. One-word descriptions of the UK constitution as being essentially “legal” or “political” do not bring out the significance of history in our national life. And if our system of democratic government is the result of history, then it is clear that the development has never ceased.
The doctrine of the royal prerogative has sometimes been revered through its link with the monarch. But as long ago as 1611, the English court held that the sovereign “hath no prerogative but that which the law of the land allows him”. In 1820, Joseph Chitty wrote a volume entitled A Treatise on the Law of the Prerogatives of the Crown; and the relative duties and rights of the subject. Chitty explained that the power to prorogue parliament was vested in the king “by the constitution, that is, by the common law, and by the custom of parliament”. Two hundred years later, we now know that the common law and the custom of parliament are still potent sources of our constitution.
The Supreme Court had to deal with the following issues. First, was the issue of the lawfulness of the prime minister’s advice to the Queen justiciable in the courts? Second, if it was so justiciable, by what standard should it be judged? Third, applying that standard, was the advice lawful? And finally, if the advice was not lawful, what remedy should be granted?
With clinical precision, the court held that its jurisdiction extended to deciding the limits of the prerogative power to advise prorogation. How should those limits be decided? Two fundamental principles were applied. One was parliamentary sovereignty, namely, the power of parliament to make laws that could not be undermined by executive action. The second was that of the government’s collective accountability to parliament, which, as the late Tom Bingham, a law lord, said in 2006, “lies at the heart of Westminster democracy”.
In considering the force of these principles, the court ruthlessly laid bare and rejected the supposed reasons advanced by Mr Johnson and Jacob Rees-Mogg, the leader of the House of Commons, for advising the prorogation. The exceptional circumstances in which the prolonged suspension of parliament was to occur led the court to conclude that there was “no reasonable justification” for frustrating the ability of parliament to carry out its constitutional functions as a legislature and as the body responsible for supervision of the executive.
Former prime minister John Major’s evidence was compelling. “This was not a normal prorogation in the run-up to a Queen’s Speech,” Lady Hale said. The justices concluded that on the evidence put before them it was impossible for them to conclude “that there was any reason — let alone a good reason” to advise the Queen to prorogue parliament for five weeks.
Even if the advice to the Queen was flawed, did this affect the validity of the “order in council” that had been made to achieve the act of prorogation? Here, the question was: “Is parliament prorogued or not?”
The government sought to rely on Article 9 of the Bill of Rights of 1689, an ancient provision which is very much alive, and which prevents the courts from interfering with the “freedom of speech and debates” secured to members of parliament. But the Supreme Court had held in 2010 that the making of false expense claims by MPs was not a “proceeding in parliament”.
Lady Hale’s court has now held that the formal ceremony by which parliament is prorogued to give effect to the order in council was not part of the core or essential business of parliament. “Quite the contrary: it brings that core or essential business . . . to an end.”
The Supreme Court was assured by Mr Johnson’s counsel that the prime minister will “take all necessary steps to comply with the terms of any declaration made by the court”. But to judge by his statements on Tuesday, Mr Johnson maintains that he was right, and that the most senior judges in the UK got it wrong.
In his best-known speech, Hamlet lists “the insolence of office” as being among the “sea of troubles” with which we have to contend. In constitutional terms, the prime minister’s conduct does not fall short of this.
The writer is emeritus professor of constitutional law at Edinburgh University and co-author, with Keith Ewing, of ‘Constitutional and Administrative Law’
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