The papers across the country are divided in opinion about the meaning of the Supreme Court decision and it’s meaning for our current Prime Minister. Is it the “Death of democracy” or is it a triumph for our democratic process? Has an abuse of power by the executive been shut down, or are the courts overstepping their authority and imposing their views on the electorate in an attempt to frustrate Brexit? Did Boris lie to the Queen? Views vary across the papers in accordance with their allegiances. Across the country a lot of people are simply wondering what it all means.
Was the advice given by the Prime Minister to Her Majesty the Queen on 27th or 28th August, that Parliament should be prorogued from a date between 9th and 12th September until 14th October, lawful and what were the legal consequences if it was not? That was the case before the Supreme Court.
The nub of this decision is that it is about what was done, not why. The Court did not go into motive – the entire decision is about what happened and whether it was lawful. The supreme court did not rewrite the UK’s constitution on Tuesday, it merely enforced the conventions of the existing one.
What is Proroguing Parliament?
It’s key to understanding this case to understand what this archaic sounding term means. Parliament sits in sessions. Prorogation brings the session to an end. The next session begins with a Queen’s Speech. While it is prorogued, the following is the case
Proroguing Parliament is not the same as dissolving Parliament. This brings the current Parliament to an end and all MPs cease to be MPs and must stand for election in a General Election. Everything relating to the dissolution of Parliament is now set out in Fixed Term Parliaments Act 2011 and thus its terms are clearly defined.
It is also not the same as adjourning (or going into recess) –during a recess although Parliament doesn’t sit, business continues otherwise as usual. Committees can meet and written Parliamentary questions can be asked and must be answered. Recess often happens over the summer, and during some (but not all) party conferences.
Therefore, proroguing Parliament has significant consequences, in a way other actions do not.
What is a Prerogative Power
Proroguing Parliament is what is known as a prerogative power. This is quite important, as it is part of the key to understanding the judgment. So what does it mean?
A prerogative power is one that is exercisable by the Monarch. In modern times these powers are either exercised by Minsters or by the Queen on the advice of her government – in effect the Prime Minister.
Unlike Statutory powers, which have their limits defined by their own terms, Prerogative powers are less easily defined, but it is important that they too have their limits. Courts have the function of determining where these limits lie, when required. The Courts have a duty to determine the legal limits of powers conferred on each branch of government and whether an exercise of power has transgressed those limits. This acts as a protection to the people against the abuse of power – for example in 1965 it was confirmed by the courts that the executive cannot exercise prerogative powers to deprive people of their property without compensation.
Allowing unlimited power without legal limit could lead to abuses and the courts provide a check to that power, ensuring that power is exercised legally and within the law.
What exactly was the case about?
There were two strands to the challenge. Firstly, was it lawful to prorogue Parliament – meaning a challenge to the extent of prerogative powers. As already set out, deciding the limits of prerogative powers is something that has been the Courts’ responsibility for centuries.
The second challenge was that the motive for requesting the prorogation be challenged. This perhaps got more press coverage – was Boris Johnson trying to prevent scrutiny in the lead up to the 31st October in order to facilitate a No Deal Brexit? Despite the press coverage, this was not the nub of the decision, and indeed, in the end, was not ruled on.
To decide if it was lawful, the court had to decide whether the action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account. They held that it was. The prorogation as it happened “prevented Parliament from carrying out its constitutional role for a period of five out of a possible eight weeks between the end of summer recess and exit day on 31st October”. Even if recess had been agreed (which is by no means certain given the situation), during a recess the functions of scrutiny remain active. In a prorogation they do not.
The court did not consider what the Prime Minister’s motive for his actions may have been. They looked solely at whether there was a reason for him to do so. It is very key to this case to see that in fact the Prime Minister gave no reason – the reasons given to the court focused on the need for a Queen’s Speech and holding it in the week of the 14th October. But nothing explained why this required a prorogation of five weeks. Evidence given, unchallenged by the government, was that the work on the Queen’s Speech takes on average 4 to 6 days. The government’s evidence also did not go into why 5 weeks would be needed. The Court noted that the evidence did not at any point address the difference between recess and prorogation and gives the incorrect impression they are much the same. Had the Prime Minister put in a sworn witness statement with reasons, then the Court may have needed to move to the second strand of the case, and a decision against the government would have been far from certain.
Without evidence to the contrary, they held that it was impossible to conclude that there was any reason, let alone a good one, to advise on a five week prorogation. In the absence of a reason given by the government, the need to move to the second part of the challenge and consider motives was not required. The decision was unlawful.
The outcome of this decision was quite simply that the Prime Minister’s advice was unlawful. Thus, an Order in Council founded upon it was also unlawful. Therefore, the prorogation which followed was also null, and unlawful.
In the same way that an illegal contract is said to have never taken place, here the prorogation being founded on an act which was illegal is simply legally held to be void. Parliament is therefore put in the position they would have been in before the prorogation took place and is thus still in session.
Why does all this matter?
It is hard to say it better than Lady Hale “We live in a representative democracy. The House of Commons exists because the people have elected its members. The Government is not directly elected by the people (unlike the position in some other democracies). The Government exists because it has the confidence of the House of Commons. It has no democratic legitimacy other than that. This means it is accountable to the House of Commons … for its actions …”.
We need Parliament to keep the executive in check, to ensure that the exercise of power is subject to the people that we elect to represent us.