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SUPREME COURT RULES PROROGATION OF PARLIAMENT UNLAWFUL, NULL AND VOID

In a historic judgment on combined appeals from England and Scotland on 24 September 2019, all 11 Justices of the Supreme Court ruled unanimously that Prime Minister Johnson’s advice to the Queen to prorogue Parliament for five weeks from mid September to 14 October 2019 prevented Parliament from carrying out its constitutional role. No justification for taking action with such an extreme effect had been put before the court. The advice to the Queen, and therefore the Order in Council which resulted from it, were both unlawful, null and void, and the prorogation of Parliament had not legally taken place.

Justiciability

On the issue of justiciability, whether it had the right to intervene, the Court was firmly of the opinion that it did…”it is well established, and is accepted by counsel for the Prime Minister, that the courts can rule on the extent of prerogative powers” (para 52).

By what standards is the lawfulness of the advice to be judged?

“The sovereignty of Parliament would… be undermined as a foundation principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased.” (para 42).

“As Lord Bingham of Cornhill said in the case of Bobb v Manning [2006] UKPC 22 para 13…”the conduct of government by a Prime Minister and Cabinet collectively responsible and accountable to Parliament lies at the heart of Westminster democracy”. (para 46)

…”a prerogative power is only effective to the extent that it is recognised by the common law: as was said in the Case of Proclamations [(1611) 12 Co Rep 74], “The King hath no prerogative but that which the law of the land allows him”. A prerogative power is therefore limited by statute and common law, including, in the present context, the constitutional principles with which it would otherwise conflict.” (para 49).

“…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 its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”

 

Was the advice lawful?

On this question , the Court stated (para 55) that “The first question, therefore, is whether the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding Government to account” and answered its own question (para 56) by saying “The answer is that of course it did.”

The Court noted (para 59) that unchallenged evidence from Sir John Major was to the effect that a typical time for the work on a Queen’s Speech was four to six days, and that the Memorandum from Downing Street  had “much to say about a new session and Queen’s Speech, but nothing about why so long was needed to prepare for it”. The judgment notes the Prime Minister’s description of the September sitting of Parliament as a “rigmarole”, while commenting that the Prime Minister is more than simply the leader of the Government seeking to promote its own policies, but he has a constitutional responsibility.

The Court stated that (para 61) –

“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, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”

Remedy

The Court brushed aside arguments that it was prevented by either the Bill of Rights of 1688, or the Claim of Right of 1689 of the Parliament of Scotland, from ruling on the lawfulness of the prorogation, which was not a “proceeding of Parliament” but something imposed from outside which brought such proceedings to an end.

It opted for the Scottish, rather than the English, view of the appropriate remedies, by concluding comprehensively (paras 69-70) that the Prime Minister’s advice …”was unlawful. It was outside the powers of the Prime Minister to give it. This means that it was null and of no effect…”

“It led to the Order in Council which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed. This led to the actual prorogation, which was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect.

“It follows that Parliament has not been prorogued and that this court should make declarations to that effect.”

Summary
This is by any standards a momentous and historic judgement, which goes to the heart of the ways in which the United Kingdom is governed, and the separation of powers between the Crown, Executive and courts. As all major Constitutional issues do in the United Kingdom, it has some echoes of debates in the 17th century. It is hard to think of precedents for an Order in Council being quashed.

It will inevitably reignite the debate on whether the United Kingdom now needs to have a written Constitution, if the consensus has so far broken down in so many areas as to how an unwritten Constitution should work. Perhaps a Constitutional Convention would work better at a time when the country was less polarised politically.

It will inevitably lead to critical examination of how and why the United Kingdom retains prerogative powers, which used to be the preserve of a Mediaeval monarchy, and are now exercised by Prime Ministers. The case established beyond doubt that their use can be subject to judicial review, but it must be questioned whether they should now be replaced by statute, or by written Constitutional provisions.

In the short term, and for those with more parochial interests, like the status of environmental laws, it would seem that the Agriculture Bill,  Fisheries Bill, Trade Bill and other legislation going through Parliament have not ‘fallen’, but have been exhumed from an unlawful prorogation of Parliament to continue their progress. The Government has yet to confirm when the Environment Bill will be introduced.


For further information please contact William Wilson, Barrister at Wyeside Consulting Ltd, info@wyesideconsulting.com tel. +44(0)1225-730-407