The UK Supreme Court have made a judgement on Boris Johnson’s prorogation of Parliament – and it is not a good one for the Prime Minister.
The Supreme Court is the highest court in the UK for both criminal and civil issues. In this role, they uphold the function of Judicial Review, whereby the Supreme Court can consider decisions made by Parliament and the Government and rule whether or not they are Ultra Vires (beyond their power/authority).
Unlike the the US, Britain does not have a codified constitution. Therefore, there is no constitutional framework against which to adjudge parliamentary and executive decisions. In the US, the Supreme Court has found a number of things to be unconstitutional and has been able to strike them down (overturn them). For example, in 2013 a Supreme Court case called Obergefell vs Hodges ruled that the Equal Protection Clause of the US Constitution guaranteed the rights of same-sex couples to marry in the United States. Since then, Same-Sex Marriage has been a protected right across the United States.
In the UK, Parliament is sovereign. This means that although the Supreme Court may find something Ultra Vires, they cannot enforce a change of government policy or reverse a law passed by Parliament. However, a ruling by the Supreme Court is extremely difficult politically for the Government to ignore. This is why, for example, the Government listened to the Supreme Court’s judgement in Miller vs Brexit Secretary.
The case heard at the UK Supreme Court was an amalgamation of appeals for two separate cases, one in Scotland and one in England.
In Scotland, the Court of Session ruled that the prorogation was unlawful. They found that Boris Johnson’s “true reason” for advising the Queen to prorogued Parliament was to limit Parliament’s ability to scrutinise Brexit. They said that because parliamentary scrutiny is essential to upholding democracy and the rule of law, the prorogation was unlawful. The government appealed this case and this has now been heard in the Supreme Court.
In England, the High Court dismissed the case led by Gina Miller in ruling that the decision on whether to prorogue Parliament was a political rather than a legal decision and therefore the court had no place to make judgment on it. Gina Miller’s team appealed the case and now, alongside the Scottish case, it is has been heard in the Supreme Court.
The ruling of the Supreme Court today found that Boris Johnson’s prorogation of Parliament had been unlawful. Importantly, they stressed that the motives for the Government’s actions were not central to the issue. They said that the fact that prorogation had stifled parliamentary debate meant that “the effect on the fundamentals of democracy was extreme”. The unanimous judgement given by the court was that:
” The decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability to Parliament to carry out its constitutional functions without reasonable justification”
The Speaker of the House of Commons, Jon Bercow, immediately announced that he was preparing for a resumption of the parliamentary session on Wednesday 25th September. The Government has said that it is considering their response.
One potential avenue open to the PM appeared to be re-proroguing Parliament. However, the fact that the court have said that it is the action itself, rather than the motive, that is illegal, this appears difficult.
This is the most significant intervention in the political process that the Supreme Court have made since it started sitting in 2009. Miller vs Brexit Secretary was a case about where legal power resided over the triggering of Article 50. This case, however, is directly about the limits of the prerogative powers of the Prime Minister. Its precedential effects on the UK’s unwritten constitution could be significant.