The Supreme Court of the UK has ruled that the advice given by British Prime Minister Boris Johnson to Her Majesty the Queen to prorogue parliament was unlawful, null and of no effect, and that it was outside his powers to give it. Johnson, on a visit to the US, “profoundly disagreed” with the judgment, but will “respect” it. Nevertheless, he had to cancel his intended visit to the UN General Assembly in New York and return to the UK.
Johnson’s no-deal Brexit threat has been consigned to the scrap heap.
Johnson had been accused of calling for a prorogation of parliament to prevent it from scrutinising the Brexit process so he could force through a no-deal withdrawal from the European Union. The PM had put forward vague reasons concerning the preparation of the Queen’s Speech on October 14.
Johnson’s actions had already been considered in two different courts:
- Anti-Brexit campaigner Gina Miller launched proceedings in the High Court of England and Wales in September, claiming that the PM’s advice to the queen was unlawful. The court ruled that the PM’s advice to the queen had not broken the law, and the case was not reviewable by the courts (in other words, not justiciable) as it was a political action.
- A petition was launched in the Court of Session in Scotland in September by lawyers acting for 75 opposition MPs and members of the House of Lords, claiming that the decision to suspend parliament for five weeks was unlawful and in breach of the constitution. The court agreed, ruling that Johnson’s advice to the queen on prorogation was unlawful, and was driven by “the improper purpose of stymying parliamentary scrutiny of the executive”.
These judgments were now considered by the Supreme Court.
The court also had oral and written submissions from other parties, including former prime minister John Major, who has first-hand experience of prorogation.
It was argued in court by counsel for the PM and the UK government that the PM is only accountable to parliament, and that the court cannot enter the political arena and review a political action. The separation of powers should be respected.
The decision of the 11 justices of the Supreme Court was unanimous, and Lady Hale, the President of the Supreme Court, delivered the ruling.
The court made it clear that the issue on which it had to rule was not when and on what terms the UK would leave the European Union, but whether the advice given to the queen by the PM that parliament should be prorogued was lawful. It is to be noted that during prorogation, neither house can meet, debate or pass legislation. In other words, parliament is not fulfilling its democratic function. Further, if parliament is not sitting, the PM cannot be held accountable.
Essentially, the court reasoned that:
- The case is justiciable and reviewable.
- The effect on the function of the UK’s democracy was extreme as the prorogation prevented parliament from carrying out its constitutional functions with no reasonable justification.
- The PM’s action “had the effect of frustrating or preventing the constitutional role of parliament in holding the government to account”.
- The PM had not given a reason for the need to close down parliament for five weeks. Major gave evidence that he had never known a government to require five weeks to compile its legislative agenda.
- The court must ensure that government does not use the power of prorogation unlawfully.
- Every prerogative power has its limits, and it is the function of the court to determine these.
- The UK constitution has been developed over time (by common law, statutes and practice) and it is the responsibility of the courts to uphold the values and principles and make them effective.
- The sovereignty of the court would be undermined if the executive could “prevent parliament from exercising its legislative authority for as long as it pleased”.
The court ruled that the advice given by the PM to the queen to prorogue parliament was unlawful, null and of no effect. It was outside the PM’s powers to give it. The Order in Council, founded on unlawful advice, was thus unlawful, null, and of no effect. So too, was the actual prorogation – “which was as if the commissioners had walked into parliament with a blank piece of paper”.
After the ruling, Gina Miller responded: “Today is not a win for any individual or cause. Today is a win for parliamentary sovereignty, the separation of powers and the independence of our British courts.”
On the day of the judgment, Johnson was comforted by his pal Donald Trump in the US, who claimed that he knows Johnson well and that he will be around for a long time, and that Johnson “is doing a fantastic job and will be making fantastic progress” over the next few months.
The clear and concise judgment is of great value to any constitutional democracy, and of the continued battle to uphold the tenets of democratic governance and the rule of law.
Johnson arrived back in the UK to calls for his resignation. His critics are scathing – he abused his power, misled the queen, and abused the parliamentary process.
Johnson may yet go into the history books as the shortest-serving UK prime minister.