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A loss for Boris Johnson, a win for democratic governance

His advice to the queen was unlawful, null and of no effect.

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.

Background

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”.

Supreme Court

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”.

Ruling

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”.

Aftermath

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.

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How can it be a win for democratic governance when the people voted to leave?

no questioning on which way Ms Curson leans on this and I suspect other issues

Inspector, I’d assume the author refers to it being a win for democracy that the elected parliament is not illegally neutered.

As to that vote, IMO people had no clue what the consequences of exit were when it passed by a hair. What do you think a referendum outcome would be today? Whether Brexit is stupid or clever is neither here nor there for me and it may actually be good for SA trade as we would likely pick up on especially agriculture side if the UK no longer needs to buy state subsidized EU products that cost more than ours and are finally free to do so.

“people had no clue what the consequences of exit were when it passed by a hair. ”
That’s exactly what the arrogant politicians are saying. The people don’t know what they’re doing, we know better than them.
Imagine if my constituency voted to leave but my MP is vigorously fighting to keep us in, who do you think I will vote for ? That’s why they don’t want a general election. Some MPs no longer represent the will of the people.

Exactly,

Must be paid for content just look at the amount of up votes again showing how clueless mass media is.

All the obfuscation and critique of non-events yet missing the elephant in the room.

typical retarded logic from pseudo-scientist/economist/politicians.

Agree with the Inspector but I would go further. All the “stay” campaigners should be fired for obstinately refusing to carry out the wishes of the electorate.

If Cameron had half a brain the process would have had two stages – the first to decide whether or not to negotiate an exit, the second to vote on the deal. He didn’t think further than the fact he wasn’t going to lose the vote – after all he went to Eton so how could he be wrong? Consequently he didn’t consider that the EU has absolutely no interest in “helping” the UK leave painlessly as if it did there would be a long queue of other states wanting the same deal. Now you have Brain Dead Boris trying to bully British voters into a deal that they all realize is bad because he knows he will lose a ratification vote. And that’s where the “democratic” perspective kicks in – MPs on all sides know a second vote is essential now the terms of the deal are known. Given it will deliver few of the things voters wanted (eg a reduction in the numbers of Eastern Europeans) they will vote to repeal the notice given under Article 50 and Boris knows that much.

Agreed. Everyone thought it would be a landslide vote to remain.
Now the Remainers in government are blocking any move to leave.
So it is a massive loss for democracy.
The headline is totally misleading.

Barbara Curson, you must be a remoaner. By choosing that title of the article, clearly you praise democracy only if it is your favour. Otherwise, dismantle the wishes of the people by any means necessary.

The Brexit debacle has been extremely valuable to those interested in the relationship between people and politicians.

I’ve followed it in the Financial Times from the beginning and you can sum it up with the old joke:

An Englishman, an Irishman, a Scotsman and a Welshman meet in Provance for lunch where they have a wonderful time and become firm friends.

On the ferry back home a fight breaks out and three of them are killed.

… and the two survivors blame the French wine they had for lunch.

A correction for the author, two responses to her critics and a reading suggestion for those that are interested in an accessible analysis of the underpinnings of the judgment.

The statement that “The court must ensure that parliament does not use the power of prorogation unlawfully.” should probably read “The court must ensure that government does not use the power of prorogation unlawfully.” Government has the power to prorogue parliament and a key point of the judgment is that government is subject to parliamentary oversight.

An unrestricted power to prorogue parliament could have some rather unappealing results, which I suspect many Brexit supporters would find unappealing if they were to be exercised by another prime minister. See paragraph 5 of Sir John Major’s submission at https://www.supremecourt.uk/docs/written-case-for-sir-john-major.pdf. As an example, it could be used to disband the UK’s armed forces without parliamentary consent.

It is unclear why the link between prorogation and Brexit is being drawn, with the rather odd (in a South African context) “remoaner” jibes. The prime minster made it clear that to his cabinet colleagues that it was “important to emphasise that this decision to prorogue Parliament for a Queen’s Speech was not driven by Brexit considerations: it was about pursuing an exciting and dynamic legislative programme to take forward the Government’s agenda.” See paragraph 20 of the judgment at https://www.supremecourt.uk/cases/docs/uksc-2019-0192-judgment.pdf. Unless, of course, the people making these jibes are of the view that the prime minister was being economical with the truth. Unfortunately nobody in government was willing to state on oath what the reason for a five week prorogation was, so the supreme court had to conclude that; “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…”

For further reading on why the judgment is firmly grounded in existing principles but combines them in an significant and unflinching way, see Prof Elliott’s article at https://publiclawforeveryone.com/2019/09/24/the-supreme-courts-judgment-in-cherry-miller-no-2-a-new-approach-to-constitutional-adjudication/.

LOL – how ironic. Boris is trying to implement the will of the people and having to jump through hoops. But somehow his actions are undemocratic. He has asked for general elections and the opposition refuses due to the possibility of him garnering MORE votes. And Boris is undemocratic….. your definition of democratic does not sit well with me…..

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