A victory in the Supreme Court for the rule of law and constitutionality

On the face of it, today’s Supreme Court verdict has been a triumph for the rule of law and constitutionality in the UK conflict over Brexit. However, the conflict has still a long way to go, and there is still plenty of scope for near-illegal action by the Johnson regime and for his Parliamentary opponents to bring the regime to heal and halt the slide to systemic breakdown.

The Supreme Court ruling

Today in an historic landmark ruling the UK Supreme Court ruled as unlawful and void PM Johnson’s prorogation of Parliament. Despite fears that it would not want to intrude into relations between the executive and the legislature as regards the exercise of the royal prerogative, it chose to do just that. It ruled that:

  1. The case was “justiciable”, that the courts could rule on the prorogation of Parliament for other than short-term procedural reasons. It argued that the courts have been doing this since a celebrated case in 1610 when the court held that “the King [who was then the government] hath no prerogative but that which the law of the land allows him” (Chief Justice Coke). In other words, the Crown, and therefore the royal prerogative, was subject to the rule of law. It also stated that the courts have jurisdiction to decide upon the existence and limits of a prerogative power.
  2. That there are limits to the preogative power to prorogue Parliament in cases where “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”. It specified two crucial constitutional functions here, the ability of Parliament, as the sovereign body in the constitution, to legislate and secondly its ability to hold government to account. These functions were being violated by the prorogation.
  3. It considered that the executive had prorogued Parliament without reasonable justification. HM Government had offered no reasoned justification, and that in itself proved highly damaging. It had argued that prorogation was needed to prepare for a new session, but the length was far longer than normal and gave further credence to the argument presented by the petitioners that the real reason was to frustrate Parliament’s ability to carry out its constitutional functions. Thus, “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“.

The court concluded that the prorogation was null and void and that Parliament could meet again right away.

Constitutional implications

This is a landmark ruling.As one observer writes, “Constitutionally, this is a magisterial landmark in the assertion of parliamentary sovereignty against the residual power of the crown and ministers. But it also bolsters parliament against all the other forces that claim to have higher authority too – from referendums to the tabloid press to the crowds in the streets.”

It completes a process since the 1960’s in which the royal prerogative to make treaties and declare war and peace has been removed. The power over treaties was relevant in this case since the whole dispute since the Miller Case in 2017 had been about the right of Parliament, under the overriding doctrine of Parliamentary Sovereignty, to consent to the notice of departure from the EU under Article 50. Since then, and especially since the government lost its majority in the 2017 general election, Parliament and the government has been at loggerheads over agreement to the terms of departure from the EU.

Most recently Parliament had rejected the May Withdrawal Agreement of December 2017 with the EU. Johnson has been trying to force through Brexit by 31 October 2019 with or without a deal and Parliament had passed a law, the Benn Act, to prevent him leaving by then without a deal. Prorogation served the purpose of limiting discussion and further blocking his actions. This issue of departure from the EU had become a struggle for power between the Brexiter-controlled executive and Parliament where a loose but broad-based coalition of Remainers and “soft Brexiters” were seeking an agreed and far less damaging solution.

The Supreme Court ruling now reinforces the right of Parliament, as the sovereign body in the constitution, to fulfill its legislative and scrutiny functions and reduces considerably the power of the prerogative in the areas of treaties, war and peace, and crucially now that of prorogation itself, as exercised by the PM, to probably a ceremonial level.

What happens next

Parliament will meet again the next day, 25 September, and it is likely that an enraged opposition to Johnson will exact its revenge for the attempted muzzling of Parliament at the beginning of September. However, as with so much of the Brexit crisis, there is no simple way forward in this deadlocked situation. There are several possibilities

  1. Johnson has suggested he may prorogue Parliament again, and thus play for more time. This might heighten the crisis further however, and increase the sense that the government is behaving unconstitutionally and illegally, given the ruling today. Further court action could follow, to enforce the Supreme Court decision.
  2. The Parliamentary opposition, now numerically greater than the government, could use the emergency debate facility again to initiate and secure an act to limit Johnson’s use of prorogation and further tighten the law against a no deal Brexit, while seeking to obtain a deal greed with Parliament and with the EU. Many see this as a potential way forward.
  3. They might also overthrow him using the 2011 Fixed Term Parliaments Act. This would open up a dilemma of whether to trigger a General Election before Brexit and thus risk giving Johnson a majority and a No Deal Brexit, or form a Government of National Unity to pilot through a 2nd Referendum as many are urging.
  4. The weakeness of the opposition is the inability of its leaders to collaborate. This was evident in the disputes as to who would be PM. Corbyn had suggested himself but he is seen as toxic by other parties. However, some unity opposition government is one way forward.

It seems that people are more united against Johnson than they are on alternatives.

At the same time, the patience of the EU is wearing very thin. Johnson seems almost deliberately to have created conflict with the EU, which heightens suspicions as to his real motives.

While the Supreme Court verdict might seem a short-term triumph for those concerned for the rule of law and constitutionality, such is the depth of antagonism and the willingness of the Johnson regime to stretch legality to its limits that we still have no clear solution in sight but rather further potentially lethal conflict.

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