Prorogation Unlawful: What Happened in the Supreme Court

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Yesterday we all witnessed something quite unprecedented. The UK’s highest court led by its President Lady Hale held that the British government’s decision to prorogue Parliament in the run up to the impending Brexit deadline was unlawful and, therefore, void. This past week has seen our major constitutional players – the judiciary, the government and Parliament – come head to head as they vie to find their constitutional place in an increasingly uncertain and volatile political atmosphere.

So, what was the case all about?

Just in case you’ve had your head buried in the sand for the past month or so, the case is the latest episode in the oh-so-short (but feels like a lifetime) saga of Boris Johnson’s tumultuous time in Downing Street.

Johnson came to power on a No-Deal Brexit tidal wave in which a cavalier attitude towards the EU and a boatload of intricate political and media strategy was the key to ensuring the delivery of the Conservatives’ long-awaited post-Brexit utopia. As part of this strategy, Johnson prorogued Parliament in order to prepare for a Queen’s speech which promised swathes of social reform and funding for key public services. However, opinion was divided over the motivation behind prorogation, as it was an unusually long period just to prepare for a Queen’s Speech. The opposition parties and many other key legal and political figures saw this as a veiled attempt to reduce the ability of Parliament to scrutinise the government’s Brexit preparations.

The upheaval from this was palpable across the country from the ‘Stop the Coup’ protests in Whitehall, to Boris’ disastrous visits out of London to the so-called Brexit heartlands. Alongside these grassroots movements, and a scathing review of the PM and his government by the Opposition parties, two challenges were also brought in the courts: one in Scotland and one in England. Finding different verdicts, the case was fast-tracked to the Supreme Court and this is where the real fun begins.

What did the Supreme Court say, and what is its effect?  

One overriding issue which had been discussed in the lower courts was the issue of justiciability – whether the court had any right or jurisdiction, as an inherently apolitical institution, to comment on the political dealings of the government. The English High Court said no, and the Scottish Court of Session said an emphatic yes.

The Supreme Court held unanimously that the government’s power to advise Her Majesty the Queen on suspending Parliament is dependent on two key constitutional principles: Parliamentary sovereignty and Parliamentary accountability. These two concepts purely mean that Parliament is the unchallengeable law maker in the UK, not the government or the judiciary, and they have a unique oversight over the discretionary powers of the government to ensure that they are performing their role in the correct way as permitted by Parliament itself. This means that, if prorogation of this length was an unreasonable block on Parliament’s ability to carry out this function, the government will therefore have overstepped their legal power, and the courts have the power to review the action.

The second issue considered by the court was whether Boris Johnson’s government had indeed overstepped their legal authority and acted unlawfully when advising prorogation. In an excerpt from her speech, Lady Hale explained that the decision to advise the Queen to consent to suspend Parliament was unlawful as it had the effect of frustrating the ability of Parliament to carry out its function as our supreme lawmaker without a reasonable justification as to its necessity. Lady Hale explained that no explanation had been offered as to why the length of prorogation was set at five weeks and not the ‘four to six days’ usually required.


“Parliament is not prorogued” – Lady Hale


These words of Lady Hale signalling that the government’s actions have been declared void by the Court and MPs and the Lords can now head back to the Palace of Westminster and get back to Parliamentary business.

What’s next for UK politics?

The Prime Minister Boris Johnson has agreed to respect the ruling of the United Kingdom’s highest court, though he has made his personal disagreement with the ruling quite clear. The road ahead is quite uncertain, and we’ll just have to wait and see what comes next in the Brexit saga. But I think we all, no matter what side we’re on, should take a minute to understand and reflect upon the profound importance of yesterday’s judgment. It shows that our constitutional system, though with its many faults, still respects our core constitutional values and the rule of law and can be counted upon to act to protect our democracy even in the most unique of circumstances.

Words by Joey Lewin


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